THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

[COMMERCIAL DIVISION]

MISCELLANEOUS APPLICATION NO 543 OF 2011

[ARISING FROM CIVIL SUIT NO 43 OF 2010]

V.G. KESHWALA                        }

T/A VG KESHWALA & SONS}.................................................. APPLICANT

VERSUS

MM SHEIK DAWOOD}........................................................... RESPONDENT

BEFORE HONOURABLE MR JUSTICE CHRISTOPHER MADRAMA

RULING

The applicant brought this application under section 98 of the Civil Procedure Act and order 6 rules and 19 and 31 of the Civil Procedure Rules for orders that leave be granted to the applicant to alter or amend his plaint in Civil Suit No 43 of 2010 in the particulars as sought and the costs of the application be in the cause. The grounds of the application are that the amendment sought to be made are necessary for the purpose of determining the real question in controversy between the parties and are also necessitated by the mistake or mix up by counsel which should not be visited on the applicant. The amendment sought will occasion no prejudice to the defendant and that it is fair and equitable that the application is allowed to serve the cause of substantive justice

The application is supported by the affidavit of V.G. Keshwala, the applicant which deposes to the facts. The applicant’s case is that sometime in February 2010 he filed the Civil Suit No. 43 of 2010 against the respondent for infringement of his registered trademark "TOTO Wax Matches". The applicant carries on the business of inter alia dealing in wax matches in the name and style of V.G KESHWALA and Sons. However the plaint was prepared with apparent mistakes or mix up of facts and typographical mistakes by the applicants advocates which need to be corrected by an amendment of the plaint. The mistakes are in the heading as well as paragraphs 1 and 6 (a) of the plaint. From information of his lawyers, the applicant believes that he has a right in law to amend his pleadings so that he is afforded reasonable opportunity to present his case to its fullest extent and to enable the court to determine the real questions in controversy. That the mix up or errors sought to be rectified in Civil Suit No. 43 of 2011 in the amended plaint arise from the mistake of his counsel which mistakes should not be visited upon him to his detriment.

The affidavit in opposition to the application is contained in the affidavit of Byrd Ssebuliba an advocate of the High Court of Uganda practising with the firm of the respondent’s lawyers. It raises in opposition to the application, points of law by which the respondent asserts that the applicants application is fatally defective. He avers that neither the respondent nor advocates were aware of the alleged suit of the applicant against the respondent who is different from the plaintiff in High court civil suit number 43 of 2010. Secondly the respondent contends that the applicant is just trying to cover up the negligent drafting of the plaint by his advocates which is not a sufficient ground for allowing an amendment to the plaint. The application has been unreasonably delayed ever since the filing of the suit in February 2010 until 23 September 2011 which delay is inexcusable. The respondent will be greatly prejudiced because the amendments seek to replace the plaintiff in the main suit and also introduce a new cause of action.

At the hearing of the application, the applicant was represented by Brian Kabayiza while the respondent was represented by Peters Musoke. Counsels agreed to file written submissions.

The applicant's written submissions:

The applicant’s application is an application to amend the plaint in High Court Commercial Division Civil Suit No. 43 of 2010 brought under Order 6 rule 19 and 31 of the Civil Procedure Rules and section 98 of the Civil Procedure Act for leave to amend the plaint and for costs of the application to abide the outcome of the suit.

After recounting the grounds in the application and facts as averred in the affidavit in support the applicants counsel submits that the amendments sought are meant to cure ambiguities and mix ups which are apparent in the original plaint arising from drafting errors. The mistakes are that the plaintiff is named as “V.G. Keshwala and sons" in the title of the plaint and in paragraph 1 of the plaint it is erroneously pleaded that the “plaintiff is a company though not incorporated”. Thirdly in paragraph 6 (a) of the original plaint, counsel erroneously states that the offending Wax Matches are “TOTO WAX MATCHES” instead of "BABY WAX MATCHES". Lastly that there are other incoherencies in the plaint and the proposed amendments will properly guide the court to try the real questions for determination between the parties.

Counsel for the applicant submitted that order 6 rule 19 allows amendments to be made at any stage of the proceedings and in such manner and on such terms as may be just. It provides that "all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties". The court exercises its discretion under section 98 of the Civil Procedure Act. Under this law court has inherent powers to exercise all discretion in granting amendments such as are sought in this application. In so doing, court is enjoined to accord no due regard to technicalities as provided for under article 126 (2) (e) of the constitution of the Republic of Uganda and will make just practical decisions so as to avoid a multiplicity of suits as provided for under section 33 of the Judicature Act.

When considering whether or not to grant amendments of pleadings, court is further guided by principles and are now well settled and laid down in many decided cases including the recent one of Lubowa Gyaviira and Others vs. Makerere University High Court in MA No. 0471 of 2009 where Justice Yorokamu Bamwine held that:

"The general principles which guide court when considering whether an amendment should be allowed or not have been well stated in numerous judgments. These are, briefly, that an amendment sought before the commencement of the hearing of the case to whose pleadings they intended amendment relates, should be freely allowed if the amendment can be allowed without prejudice to the other party. There would be no prejudice caused if the other party can be compensated by costs: Eastern Bakery versus Castelino (1958) EA 461

And whether an amendment is not any different in quality, from the original cause of action, it should be allowed See: Essaji vs. Solanki (1968) EA 218.

From the above authorities, two criteria must be kept in mind of the court when considering whether a proposed amendment to the pleadings of the party to a suit should or should not be allowed. The court should answer the question: Does the amendment put the other party to a disadvantage or cause injury? And if so, can the disadvantage or injury be compensated by costs? If it can, the amendment may be allowed. If it cannot, then the amendment must be refused"

The principles which guide the court summarised by the learned judge are:

1.       The proposed amendment must not be brought at so late a stage in the proceedings that to allow the amendment would be unjust to the other party

2.      A court will not exercise its discretion to allow an amendment which substitutes a distinctive cause of action for another or to change, by means of amendment, the subject matter of the suit. The court would refuse to exercise its discretion where the amendment would change the action into one of a substantially different character.

3.      No amendment would be allowed which would prejudice the rights of the opposite party, existing at the date of the proposed amendment.

4.      An amendment would be necessary within the meaning of order 6 rule 19 if it is for the purpose of determining the real questions in controversy between the parties. It ought to be allowed if thereby the real questions can be raised between the parties, and multiplicity of proceedings be avoided:

Counsel submitted that the proposed amended was within the principles in the authorities cited in that;

1.      The proposed amendments are brought without in ordinate delay since the main suit is not yet even scheduled.

2.      The proposed amendments do not introduce a new cause of action or change the subject matter of the suit or substantially change the character of the original suit.

3.      The proposed amendments to not prejudice the defendant in any way or in any manner that cannot be compensated in costs.

4.      The proposed amendments are intended to guide and enable court's determination of the real questions in controversy between the parties and thereby avoid a multiplicity of suits.

5.      The proposed amendments are necessitated by drafting errors and there is no element of surprise.

Regarding the issue of drafting errors counsel relied on the ruling of the Supreme Court in Godfrey Magezi and another versus Sudhir Rupaleria Civil Application No. 10 of 2000 where Karokora JSC the omission or mistakes or inadvertence of counsel ought not to be visited on the litigant, leading to the striking out of his appeal thereby denying him justice and applies to the facts of the current application for amendment.

Respondent’s written submissions in reply

Counsel reiterated the grounds in the affidavit in opposition and submitted that the questions for determination in this application are:

1.      Whether the applicant has locus to make the present application for amendment

2.      Whether the application for amendment offends the principles of amendments

3.      Whether there was any drafting error in the description of the plaintiff in civil suit number 43 of 2010.

4.      Whether the application and affidavits in support thereto are fatally defective.

As far as locus standi of the applicant is concerned, counsel submitted that the applicant is not a party to High Court Civil Suit No. 43 of 2010 that was filed against the respondent which was filed by V.G. Keshwala and sons described in paragraph 1 of the plaint as "a company registered in Uganda and carrying out business in its names though not incorporated". Consequently the applicant is not a party and Order 6 rule 19 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act cannot be invoked by a stranger and may be invoked by litigants only which the applicant is not. Counsel contended that the present application is an abuse of court process and intends to replace the plaintiff in the main suit without leave of court.

Article 126 (2) (e) of the constitution of the Republic of Uganda relied on by the applicant is not a magic wand in the hands of defaulting litigants and cannot assist the present applicant who is not even a litigant in civil suit number 43 of 2010. In the case of Uganda Crop Industries Ltd versus Uganda Revenue Authority High Court civil suit number 5 of 2009, the court considered the interpretation of article 126 (2) (e) relying on Supreme Court decisions. Relying on the above decision counsel submitted that the applicant is not a plaintiff in High Court civil suit number 43 of 2010. Consequently the applicant has no locus to bring the current application. Counsel further contended that section 98 of the Civil Procedure Act and order 6 rule 19 are inapplicable in this particular case. Consequently article 126 (2) (e) is not available to the applicant.

Counsel further submitted that even if this honourable court finds that the applicant is a litigant, the application offends the principles of amendment.

a)      The applicant in his submissions clearly states that paragraph 1 of the plaint in civil suit number 43 of 2010 did not properly identified the plaintiff who was described as a company registered in Uganda and carrying on business in its names though not yet incorporated. This means that the plaint sought to be amended is a nullity and does not disclose a cause of action.

b)      There can be no company registered in Uganda and not incorporated except if it is a foreign company which is not the case the present case. Under section 1 (f) of the Companies Act cap 110, a company is defined to mean a company formed and registered under the Companies Act

c)      Section 15 (1) of the Companies Act provides that upon registration of the memorandum of the company, the company is deemed incorporated and it becomes a limited liability company. Under subsection 2 of section 15 of the same act, upon incorporation, the company becomes a body corporate capable of exercising all rights of an incorporated company.

In M.A. No. 74 of 2010 which arose out of the plaint sought to be amended, Mr. Keshwala in this affidavit which is on court record swore and stated that “he is a managing partner of the V.G. Keshwala and Sons, the applicant therein” this clear statement meant that V.G. Keshwala and sons was not a company but a partnership which also has no legal capacity to sue or be sued.

In the present application for leave to amend Civil Suit No. 43 of 2010, the applicant states on oath that he carries on business in the name and style of V.G. KESHWALA & Sons implying that he trades as a company.  This is not possible in law because a company is an independent person with corporate personality and can trade in its own name.

The effect of his own admission is that VG KESHWALA & Sons is simply his business name as the sole proprietor which name has always been used to file legal proceedings in courts.  This is not acceptable in law and from the facts, the plaintiff sought to be replaced does not legally exist. The position of an unidentified plaintiff was considered in the celebrated case of Auto Garage vs. Motokov (No. 3) [1971] EA 514 at 523 in defining the three essential ingredients of a cause of action.

In light of the above he prayed that the court should hold that the plaintiff in civil suit number 43 of 2010 is not identified at all.  Consequently the plaint in civil suit number 43 of 2010 is a nullity and as such cannot be amended.

Counsel submitted that the amendments sought by the applicant are intended to substantially change the character of the original suit in that:

i.                    The amendments by introducing a new plaintiff introduce a new cause of action.

ii.                  The plaintiff in Civil Suit No 43 of 2010 whose description in paragraph 1 is that it is a company registered but not incorporated means that it does not legally exist. The amendment sought by the applicant cannot be allowed as the persons sought to be replaced cannot sustain an action in court. Counsel relied on the case of Fort Hall Bakery Supply Company vs. Frederick Muigai Wangoe [1959] EA 474, The Trustees of Rubaga Miracle Centre vs. Mulangira Ssimbwa and Afidra Milton vs. The Board of Trustees, Miracle Centre and Another HCMA No. 576 of 2006 and 655 of 2005. The effect of the decisions is that a suit by a non-existent person is a nullity and a nullity cannot be amended even by substitution.

iii.                Counsel contended that there was no controversy between the applicant and the respondent therefore though the case of Lubowa Gyaviira v Makerere University rightly states the principles it does not apply to the facts of the present application where there is clearly no controversy between the applicant and the respondent. He invited the court to hold that there is no controversy between the applicant and the respondent to warrant an amendment.

Drafting errors:

In reply to the applicant submissions in relation to the drafting errors counsel submitted that there is no drafting error ever made by counsel for the applicant as stated.  The statement that the applicants counsel made a drafting error is intended to mislead the honourable court because the parties to the plaint have been involved in a series of court proceedings represented by the same lawyers as the current ones.

·         In 2008, when the respondent applied to register his trademark number 30910 “Baby Wax” VG KESHWALA & Sons successfully opposed the application.

·         In 2009, the respondent appealed against the registrar of trademarks holding vide high Court Civil Appeal No. 14 of 2009 and V.G. KESHWALA & Sons successfully opposed the appeal and was awarded costs.

·         In 2009, the respondent applied for a temporary injunction pending the determination of the appeal in high court miscellaneous application number 682 of 2009 and VG KESHWALA & Sons successfully opposed the application and was awarded costs.

·         In 2010, after filing high court civil suit number 43 of 2010, V.G. KESHWALA & Sons successfully applied for an interim order as well as a temporary injunction against the respondent vide the H.C.M.A. numbers 73 and 74 of 2010 respectfully among others.

·         The trademarks in contention that are the subject-matter of civil suit number 43 of 2010 were registered in the names of V. G. KESHWALA and Sons who does not exist.  This can be seen from the certificate of trademark registration.

In light of the above there was no drafting mistake made by counsel for the applicant in the description of the plaintiff in civil suit number 43 of 2010 as VG KESHWALA and Sons.  Even if the court finds that there are drafting errors made by counsel the applicant is bound by his counsel’s action.  This position was considered by the court of appeal in the case of Muhammad B Kasasa versus Jasphar Sirasi Bwogi civil appeal number 42 of 2008 where justice Kitumba in her lead judgment held as follows:

“A client is bound by the actions of his counsel, negligently drafting the plaint or incompetence in doing the same is not an excuse for the client to escape being bound by his counsel’s action”.

The light of the above counsel invited the court to hold that the applicant is bound by the drafting errors of his counsel.

Defective affidavit:

Affidavits in support of the application is fatally defective in as far as it contains falsehood and therefore the applicant is not coming to court with clean hands as equity demands.  The position of the law is that an affidavit that contains falsehood is fatally defective and cannot support any application like the present one.  See the case of Sirasi Bitaitana and 4 Others vs. Emmanuel Kanamura [1977] HCB where Allen J held:

“The inconsistencies in an affidavit cannot be ignored however minor, since a sworn affidavit is not a document to be treated lightly. If it contents obvious falsehoods then it all naturally becomes suspect.  An application supported by a false affidavit is bound to fail because the applicant in such a case does not go to court with clean hands and tell the truth.”

This ruling was followed in the case of Nathan Katamba v Stephen Kabugyema [2000] KALR 777 at 780 where Musoke Kibuuka J, held that:

“Affidavits are serious documents.  Once one contains a falsehood in one part, the whole becomes suspect.  An application supported by a false affidavit is bound to fail.  The applicant has not come to this court with clean hands.  The affidavit in support is struck out. The motion remains unsupported by any kind of evidence and is therefore valueless.”

In relation to the facts of the present application, falsehoods are manifested in paragraphs 2 of the affidavit supporting the application for leave to amend the plaint in civil suit number 43 of 2010 where the applicant VG KESHWALA t/a VG KESHWALA & Sons states in his affidavit that he filed high court civil suit number 43 of 2010 against the respondent and yet the person who filed the suit was VG KESHWALA & Sons.  Consequently the affidavit in support of the application contains obvious falsehoods and is fatally defective.  Consequently the application is not supported by an affidavit and ought to be struck out with costs to the respondent.

In view of the above submissions counsel prayed that the applicant’s application be dismissed with costs to the respondent and the plaint in high court civil suit number 43 of 2010 be rejected. 

The applicant submissions in rejoinder:

In rejoinder to the submission that the plaint sought to be amended is a nullity, counsel’s argument is that the suit was brought in the names of “VG KESHWALA & Sons” which as a mere business name, is a non-existent person for purposes of bringing and sustaining a suit. Counsel contended that while it is true that a suit cannot be sustained in the name of a business name, bringing a suit in the name of the business name by which a person trades is not a defect or irregularity that renders the plaint fatal and incurably defective; it is a defect that can be cured by an amendment or rectification such as sought in the application.  This is a well settled a position of the law.  In the supreme Court of Kenya decision in LAKHMAN RAMJI VS SHIVJI TESSA & SONS (1965) EA 125 at 127 – 128 the gist of the law was set down thus: “(III) if a suit has been filed by a sole proprietor of a firm in a business name simpliciter and where an amended plaint can be filed without leave, the alteration can be made without prior authority from the court that where leave to amend the plaint is necessary, an application should be made to court; (iv) a suit filed by the sole proprietor of the firm in the business names simpliciter is defective but is not bad in law”

At page 128, the judge further held thus:

“The legal position is quite clear, is sole proprietor cannot sue in the name of the business if that name is not in his own name.…  He should sue in his own name simpliciter and then, in the body of the plaint can say that he carries on business in the name of whatever his business name happens to be and is the sole proprietor of that business.  That is technically the correct procedure but nowadays rectification is allowed so easily that the matter is merely a technicality…  Nevertheless I am not be taken as suggesting that it does not matter in such a case whether the plaintiff sues in his own name or not. He must sue in his own name and if he does not this should be rectified. If the plaintiff does not take the necessary steps to obtain the rectification the defence can take the point and make an application to force him to do so and may even get costs but normally the plaintiff can obtain rectification by formal verbal application at some convenient time after giving prior notice of his intention to the other side. If prejudice results it can be compensated in costs but very often no prejudice results and then I would usually allow the rectification without costs."

Counsel submitted that the good sense that is apparent in the above Kenyan decision has found a very fundamental expression in article 126 (2) (e) of the Constitution of the Republic of Uganda which enjoins courts of law in Uganda to administer justice without regard to undue technicalities. The above cited authority applies to the instant case. The applicant's evidence in paragraphs 1, 2, 3, 4, and 5 of his affidavit in support of the application is that he is the real and or intended plaintiff in civil suit number 43 of 2011 and that he carries on business in the name and style as VG Keshwala and sons but that the plaint carries errors in its title and other parts which this application seeks lawfully rectified by way of an amendment. The amendment sought is well grounded in the case law above cited.

The case of Utex industries versus Attorney General cited at page 4 of the respondents submissions is distinguishable from the instant case in so far as it dealt with application of article 126 of the Constitution. In this case, and appeal was filed out of time and the appellant had not bothered to apply for the enlargement of time. On the contrary, the applicant has timely applied showing that the title and other parts of the title have errors that are sought to be rectified by way of an amendment so that the plaintiff is properly identified and the real questions in controversy are finally and completely determined and the multiplicity of suits are avoided.

In the instant case it is desirable to allow the application and any prejudice suffered by the respondent can be compensated in costs. The justice of this case the demands that the applicant should be allowed is day in court to serve the ends of substantive justice.

The instant case is distinguishable from the case of Auto Garage versus Motokov (1971) EA 514 cited by counsel to support his argument that the applicant has no cause of action. Whereas the case of Auto Garage versus Motokov sought amendments to replace the plaintiff who had no cause of action for another person who had a cause of action, the amendment sought in the instant case are intended to rectify errors in the plaint so that the plaintiff is not replaced but properly identified.

The present case is also distinguishable from the case of Fort Hall Bakery Supply Company versus Frederick Muigai Wangoe (1959) EA 474, Murangira Ssimbwa versus the Board of Trustees, Miracle Centre and another which dealt with amendments seeking substitution of the parties to replace non-existent parties as opposed to amendments as herein sought to rectify the title in the plaint.

As far as locus standi is concerned counsel submitted that whereas the applicant could have put the application in the original title, he still has locus and it is not fatal to have brought the application in the title as he did even without amendment. This is more so since the amendments are not seeking to substitute parties but to effect rectification of the title in the plaint. The position of the law on this aspect is clear in the case of Lakhman Ramji versus Shivji Tessa & Sons (supra) where at page 1 it was held thus:

"… Even where proceedings are brought in a business names simpliciter, the matter will be rectified and the suit will not be allowed to fail on that ground.… When in such case the plaintiff wishes to appeal I think the better course is to appeal using the title of the case as it was at the time of the judgement appealed from if alteration has not been approved by the court in the meantime. The intention to apply to rectify the title can be indicated in the memorandum of appeal. However, I am not prepared to say that he cannot appeal in his proper name but in that case he should explain the change in the memorandum. I think that there is so little substance between these two choices that it is not worthwhile to make a great distinction".

Although the above decision referred to an appeal arising from the matter where there is a deserved rectification of the plaint title as in the instant case but which has not been done, this situation is analogous to the present situation. In this case the applicant is VG Keshwala T/A VG Keshwala and sons as opposed to VG Keshwala and sons as set out in the plaint.

Counsel relied on the judgement of McCardie J in Hawkins versus Dutch (1921) 3 KB 226, quoted with approval by the East African Court of Appeal in SADRUDIN SHARIFF VS TORLOCHAN s/o JWALA SINGH (1961) EA 72 at page 77, where it was held:

"It would, I feel, be deplorable if at the very close of the very long and costly litigation the defendant should manage to elicit a trivial and inadvertent breach by the plaintiff of the Act and thereby defeat the whole action which was otherwise well founded. The defendant would, I suppose, in case then claim costs. The further result may be that the plaintiff would be barred by the statute of limitation from, commencing new proceedings after he had gotten relief."

Counsel concluded that the applicant has locus to bring the application under the title as appears in the application and does not render the application a nullity for want of locus on the part of the applicant.

The applicant agrees that it is not the company and it was not incorporated and that is the foundation of the current application which is to rectify the mistake. VG Keshwala and sons is not a company but a business name. The affidavit in support of the application is therefore not a lie or falsehood.

As far as drafting errors are concerned, counsel submitted that the case of Mohammed B Kasasa vs. Vasphar Buyonga Sirasi Bwogi Supreme Court Civil Application No. 42 of 2008 referred to in the respondent’s submissions is distinguishable. From the decision, the amendment was sought in a matter where the defendant had raised a preliminary objection that the matter was time barred. Granting an amendment would have deprived the defendant of raising the defence of time bar.

Ruling

I have carefully considered the submissions of the counsels, the pleadings and affidavits in support and opposition of the application. The major thrust of the respondent's contention in this matter is that the applicant has no locus standi to bring this application. Pursuant to this line of objection to the applicant’s application, the respondent also contends that the plaint discloses no cause of action and is a nullity and therefore cannot be amended. The response of the respondent to the application raises preliminary issues for determination. A preliminary point of law which tends to dispose of the suit or application has to be considered first in line with order 15 rules 2 of the Civil Procedure Rules. The question of whether the applicant has no locus standi has the effect if upheld of disposing of the rest of the application. I will start by considering these preliminary points of law.

The respondent’s grounds of opposition to the application are mainly on points of law namely: that the applicant is not the plaintiff in civil suit number 43 of 2010 and so no controversy exists between the applicant and the respondent. This ground advances the question of locus standi and is to the effect that only a party to a suit can apply for amendment thereof. Secondly the respondent contends that the plaintiff in civil suit number 43 of 2010 doesn't exist and hence there is no valid plaint that can be amended. It's a contention that the court cannot amend a nullity. Simply put, it is a submission that there is no plaintiff and therefore no suit.

The contention of the respondent is founded on paragraph 1 of the plaint. In this paragraph the plaintiff asserts in civil suit number 43 of 2010 "that the plaintiff is a company registered in Uganda and carrying on business in its names though not incorporated at the time and is involved in import and general trading". Secondly, the plaintiffs name is described as "V.G. Keshwala and sons". On the other hand the applicant to this application for amendment is described as "V.G. Keshwala T/A V.G. Keshwala & sons."

The parties addressed the court at length on the question of whether the plaintiff/applicant had locus standi to bring this application. The question of locus standi addresses the question of whether an application for amendment of the plaint can be made by someone who is described differently from that described in the plaint. This is both a question of substantive law and procedure. In this case the plaintiff described in the plaint is V.G. Keshwala and sons. On the other hand, the applicant in the application for amendment of the plaint is Mr. V.G. Keshwala T/A V.G. Keshwala and sons. The two descriptions show that the plaintiff described in the plaint is a company whereas the applicant described in the application for amendment is a firm or a business name of a sole proprietor. The distinction between a limited liability company and a firm is clear when looking at the effect of registration under the Companies Act cap 110. Section 15 (2) of the Companies Act provides that:

"From the date of incorporation mentioned in the certificate of incorporation, the subscribers to the memorandum, together with such other persons as may from time to time become members of the company, shall be a body corporate by the name contained in the memorandum, capable of exercising all the functions of an incorporated company, with power to hold land and having perpetual succession and a common seal, but with such liability on the part of the members to contribute to the assets of the company in the event of its been wound up as is mentioned in this Act."

The provision specifically mentions that the body corporate is by the name contained in the memorandum. The company has a separate legal existence from that of its members and may sue and be sued in its corporate name. The corporate name embodies the legal fiction of a separate personality from that of the natural persons who are its constituent members. The applicant contends that describing the plaintiff in the plaint as V.G. Keshwala and sons was an error of drafting on the part of counsel for the plaintiff.

There are two major issues or questions that may be considered in this regard. The first is whether it is proper for the applicant to make an application in a different name from that sought to be amended without leave of court. This is a question of procedure. The second problem which is linked to the first problem is whether the description of the plaintiff by the applicants counsel is a bona fide mistake that may be amended. Linked to this is a more fundamental question as to whether the plaint as entitled is a nullity and cannot be amended. This last point is premised on the fact that there is no company by the names of V.G. Keshwala and sons. As a question of fact this is not denied by the applicant. Consequently the applicant's only line of argument is that there was a bona fide mistake of counsel which should not be visited on the applicant. The other problem is whether a suit can be brought in the name of a firm or business name of a firm and whether the applicant is a sole proprietorship or a partnership with a firm name. Secondly that such a mistake is a curable defect and may be amended by order of the court. Because the parties also addressed the question of whether the plaint is a nullity, the question of whether the suit is a nullity cannot be considered in isolation of the previous issues outlined above. The issues are all inextricably linked and have to be considered together for a coherent resolution of the controversy.

Several authorities address issues of the competence of a suit in the name of a nonexistent person. Two trends may be discerned. The first is an attempt to establish whether there was a bona fide mistake in the description of the plaintiff which did not mislead the defendant. This is termed a mere misnomer and may be amended to provide the correct name or description of the plaintiff. Considerations of whether the bona fide mistake relates to the names or description of the plaintiff or defendant are material. In case it is in the description of the defendant this provides a defence to the action if it is held to be a nullity. Where it is the plaintiff the issue is whether the suit in such cases is a nullity and cannot be amended. The discussion of this question may involve considerations as to whether the plaintiff did exist at all and whether as a consequence, the name should be substituted.

The above different case scenarios need to be reviewed before a resolution of this controversy. In the case of A.N. Phakey vs. World Wide Agencies Limited [1948] Vol XV EACA at page 1 the East African Court of Appeal dealt with a case where plaintiff’s Advocate made a mistake by describing the Plaintiff’s name as “Traders Limited”. The court found as a question of fact that defendant was not misguided at all but answered all the allegations in the plaint in its written statement of defence. It was discovered that no company by the name “Traders Limited” existed. What existed in the company register was the company “World Wide Agencies ltd”. An amendment to the name of the plaintiff was held to be proper and the contention that the suit was a nullity was overruled. The Court observed that the defendant was no prejudiced and knew who was suing him. His appeal on the ground that the plaint was a nullity was dismissed. It may be argued that this case is distinguishable from the current suit in that in this case no company existed. What exists is a firm with a “sole proprietor” or “a partnership” something that I have to resolve as a question of fact in this decision but may await the consideration of other matters and authorities on the above questions.

What must be borne in mind is that two matters are being sought in the application. The first is to note that V.G. Keshwala and Sons is a business name and not a company name and the second is to include the name of Mr. V.G. Keshwala as a proprietor of the firm trading under the said business name. Related to this is the obvious problem of the description of the applicant as a firm or partnership in other matters to be reviewed in this controversy.

The Ugandan cases reviewed of the Trustees of Rubaga Miracle Centre v Mulangira Ssimbwa a.k.a. Afidra Milton vs. The Board of Trustees, Miracle Centre and Another Miscellaneous applications No. 576 of 2006 and 655 of 2005 [2006] UGHC 69 deal with factual situations where the party described does not exist. The procedural issue raised by these cases is whether a plaint may be amended under order 6 rule 19 as sought in the current application or whether it is a question of substitution of parties under order 1 rule 10 (2) of the Civil Procedure Rules.

Order 1 Rule 10 (2) empowers Court to add or strike out a party improperly joined; and Order 1 Rule 10 (4) allows an amendment of a Plaint where the Defendant is added or substituted under order 1 rule 10.

In the case of Reliable African Insurance Agencies v. National Insurance Corporation [1979] HCB 59 a suit decided by Hon. Benjamin Odoki Ag. J as he then was. In the original plaint the plaintiffs were described as Reliable African Insurance Agencies, a firm. In paragraph 1 they were described as a firm of insurance agents. Later on the plaintiff filed an amended plaint without leave in which the plaintiffs were described as “Reliable African Insurance Agencies a firm of partners t/a above, namely: 1. A. Mwanje, 2. S Mwete, 3. S. Kasujja and 4. J.S. Mwanje. They were described as carrying out the business of insurance agency. The defendant objected to the substitution of the plaintiffs in the amended plaint on the ground that it was irregularly made without the leave of court and to the extent that the plaint was wrongly before the court and should be rejected or struck off. On the other hand the plaintiff’s counsel contended that what was involved was an amendment of the plaint as a whole and not the substitution of the plaintiff under order 6 and 19 of the Civil Procedure Rules. The court noted that the substantial issue to be determined was whether the amended plaint was a substitution of the plaintiffs or an amendment of the plaint. The court overruled the objection on the ground that it was quite clear that in both plaints the plaintiffs were Reliable African Insurance Agencies and what was in the amended plaint was this description of the firm by listing the names of the partners in the firm. The court also considered that under order 27 rule 1 partners can be sued in their firm name and what was required was for the plaintiffs to furnish the defendant with the names and places of residence of all the persons constituting the firm on whose behalf the suit is instituted upon demand by the defendant. The addition of the names of the partners in the amended plaint was made without request from the defendants and cannot be held against the plaintiffs as it was a minor matter of form which did not affect the substance of the identity of the plaintiffs which was Reliable African Insurance Agencies. The amendment without leave was made within the stipulated time.

In Reliable African Insurance Agencies (Supra) the question of whether the plaintiff is a partnership was a material consideration in respect to the need to disclose the other partners and their particulars. However when it came to the issue of identity the court did not make any pronouncement and held that the identity of the plaintiffs remained the same.

In the case of The Trustees of Rubaga Miracle Centre V. Mulangira Ssimbwa (Miscellaneous Application Number 576 of 2006 and Mulangira Ssimbwa A.K.A Afidra Milton V. The Board of Trustees, Miracle Centre and Pastor Robert Kayanja (Miscellaneous Application Number 655 OF 2005) (both Applications arising from HCCS No. 768 of 2004). In the first application the defendant sought to have the plaint rejected on the ground that the defendant described as the Board of Trustees, Rubaga Miracle Centre Cathedral is a nonentity and had no capacity to sue or be sued. On the other hand the plaintiff in MA 655 sought leave to amend the plaint by adding Pastor Robert Kayanja. Justice Remmy Kasule held that, where the amendment by way of substitution of a party purports to replace a party that has no legal existence, the plaint must be rejected as it is no plaint at all. He accordingly allowed the application to reject the plaint and dismissed the application for amendment. This is consistent with and in line with the holding of the East Africa Court of Appeal in Auto Garage vs. Motokov [1971] EA 514 that a plaint which is a nullity discloses no cause of action and cannot be amended.

As far as nullity of the plaint is concerned there are a string of authorities which advance the proposition that a suit filed by a nonentity cannot be cured by substitution of the nonentity neither can the plaint filed by a nonentity or a suit against a nonentity be sustained or amended because it discloses no cause of action. By analogy a nonentity incorporates the legal doctrine of a capacity to sue and establishes the same that only a party with legal capacity to sue can bring an action in a court of law. In the Tanzanian case of Babubhai Dhanji Pathak V. Zainab Mrekwe [1964] EA 24, a suit was filed in the lower court in the name of a dead plaintiff 45 days after her death and an application to substitute the deceased plaintiff under order 1 rule 10 was allowed in ignorance of the fact by the Magistrate. On appeal to the High Court Law J held at page 26:

“A suit instituted by a dead person is a nullity. The power to substitute a plaintiff where a suit has been filed in the name of a wrong person, conferred by Order 10, r. 1(1) in the First Schedule to the Indian Civil Procedure Code, can only be exercised where the “wrong person” was living at the date of instituting the suit, and has no application where the “wrong person” was dead at such date.

In the case of Fort Hall Bakery Supply Co. Ltd V. Fredrick Muigai  Wangoe [1959] EA 474,the plaintiff’s were an association consisting of 45 persons trading in partnership for gain but their firm was not registered under the Business Name Registration Ordinance. It was submitted by the defendants that the Companies Ordinance prohibited an association or partnership of more than twenty persons. The plaintiffs were a group of persons not having legal existence under the Companies Ordinance. The plaintiffs filed the suit in the name of “Fort Hall Bakery Supply Company”. Templeton J agreed with the words of Bankes L.J in Banque Internationale De Commerce De Pertograd v Goukassaow (3), [1923} 2 K.B. 682 at p 688 that:

“The party seeking to maintain the action is in the eyes of our law not party at all but a mere name only, with no legal existence."

He concluded by saying at page 475:

"A nonexistent person cannot sue and once the court is made aware that the plaintiff is nonexistent, and therefore incapable of maintaining the action, it cannot allow the action to proceed. The order of the court is that the action be struck out, as the alleged plaintiff has no existence. Since a non-existent plaintiff neither pay nor receive costs there can be no order as to costs."

As can be seen the distinction between an amendment of a plaint and substitution of a plaintiff are often blurred since both lead to a change in the plaint. Substitution however deals specifically with the identity and personality of a party to the suit. Amendment may deal with the description of the plaintiff inclusive of the issue as to whether the name is a misnomer of the proper name. In the English case of Alexander Mountain & Co v Rumere Ltd [1948] 2 All ER 144, the deceased AM was the sole proprietor of a business which he carried on under the name of “AM & Co.” After his death his executrix, who continued to carry on the business under the same trading name, brought an action in the name of “AM & Co (trading as a firm)” the action being on a contract made by AM during his lifetime. An application to amend the writ by substituting the executrix as plaintiff was refused by Lord Goddard C.J when he defined what a mistake under the rules for substitution meant. The rule he interpreted is RSC, Ord 16, r 2, which is close to the order 1 rule 10 (1) of the Ugandan Civil Procedure Rules. RSC, Ord 16, r 2, provides:

Where an action has been commenced in the name of the wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff, the court or a judge may, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as may be just.

Lord Goddard held that the words “bona fide mistake” in the rule do not mean a mistake as to the effect of the rules but means “a slip, or something of that sort”. It does not mean a mistake as to what the practice of the court is. Had the deceased been alive he would have been the only person entitled to sue. He agreed with a passage from an earlier decision by Lord Russell J in Tetlow v Orela Ltd ([1920] 2 Ch 24), where he said:

“The rules relied on are rr. 2 and 11 of Ord. 16 … In my opinion [r. 2] means that, where an action has been commenced between two living parties by a living plaintiff, and the living plaintiff afterwards turns out to be the wrong person, an application may be made to the court, and the court can substitute another person for the living plaintiff or may add another person as co-plaintiff as the case may be. But it does not justify the court in creating a plaintiff in an action for the first time.

Russell J then concluded his judgment by saying (ibid, 27):

In my opinion the names of “parties improperly joined” and the names of “parties who ought to have been joined” are, within the meaning of that rule, the names of living persons.”

The court concluded that there was no power under RSC, Ord 16, r 2, to amend the writ by substituting the executrix as plaintiff. The decision of Goddard C.J was overturned on appeal in Alexander Mountain & Co v Rumere Ltd [1948] 2 All ER 482. The Court of Appeal agreed with Lord Goddard in so far as his interpretation of the rule 2 of Order 16 RSC is concerned but held that the action did not fall within RSC, Ord 16, r 2, as having been “commenced in the name of the wrong person as plaintiff,” the case might properly be treated as one of misnomer and the writ amended by substituting the executrix as plaintiff.

Cohen L.J. relied on an old practice which had not been brought to the attention of the lower court that required a misnomer in the name of the plaintiff to be brought to the attention of the court by the defendant through an application supported by an affidavit requiring him or her to amend at the cost of the plaintiff and insert the right name.

This was the position up to the passing of the Civil Procedure Act, 1833, s. 11 of which abolished pleas in abatement for misnomer altogether. It gave the defendant the right, instead of pleading in abatement, “to cause the declaration to be amended, at the cost of the plaintiff, by inserting the right name, upon a judge’s summons founded on an affidavit of the right name.” This Act is now itself repealed, and all pleas in abatement are finally abolished by R.S.C., Ord. 21, r. 1. A plaintiff, whether an individual or a corporation, is, of course, still required to bring his action in his proper name. There does not appear to be any specific rule of court dealing with the matter, nor do the rules of court deal with misnomer in any way. It, therefore, appears that R.S.C., Ord. 72, r. 2, applies; i.e., “the present procedure and practice” (i.e., the practice in force when the rules of 1883 were framed) remains in force, and the defendant by summons, supported by affidavit, could compel the plaintiff to amend. If he does not do so, and the matter proceeds to trial, it is submitted that the misnomer can then be amended, and that in no circumstances could the misnomer affect the substantive judgment which the court is called upon to pronounce.”

A history of the English Procedure can be found in Odgers on Pleadings and Practise” 20^th Ed. By Giles Francis Harwood pg 174-175, where the learned authors state:

“If any party to the action is improperly or imperfectly named on the writ and no change of identity is involved, the misnomer may be corrected in the statement of claim by inserting the right name with a statement that the party misnamed had sued or been sued by the name on the writ e.g. ‘John William Smythe’ sued as J.M Smith). The defendant cannot take advantage of such alteration (pleas in abatement of misnomer were abolished as long as 1834); but difficulty may arise in executing a judgment unless the plaintiff amends the writ. The author also notes that where a defendant has executed a deed by a wrong name, it is right to sue him by the name in which he executed it.

According to HALSBURY’S LAWS OF ENGLAND 4^TH Ed. Vol. 37 at Par 260, where a party has made a mistake as to the name of a party and the period of limitation prescribed by the statute has expired, the court may allow an amendment of the statement of the case to correct the mistake, but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question.

A misnomer is defined in Black’s Law Dictionary 7^th Ed, by Bryan A Garner at pg 1015 as:

“A mistake in naming a person, place or thing especially in a legal instrument. In Federal pleading-as well as in most states- misnomer of the party can be corrected by an amendment, which will relate back to the date of the original pleading. Fed R.  Civ. P15 (c) (3)”

The case of A.N. Phakey vs. World Wide Agencies Limited [1948] Vol XV EACA dealt with misnomer. Can it be said that the applicant’s case is one of misnomer? The respondents counsel strongly submitted that there was no mistake or misnomer but a fundamental question of identity and capacity to sue involved. The Applicants counsel relied on the case of Lakhman Ramji v. Shivji Jessa and Sons [1965} EA 125 a decision of Rudd J of the Supreme Court of Kenya Nairobi (High Court). On appeal the court addressed the issue of whether a sole proprietor of a business can sue in the name of the business. The appellant was the Sole Proprietor of “Orient Plumbers” the business name.  In the lower court the appellants sued in his business name and not in his name.  This was objected to in the lower court that it was not proper but the so called defective title was not altered in the lower court.  The appeal was however filed in the name of the appellant “trading as oriental plumber’s” without any change in title having been authorised by any competent court.  The respondents counsel intimated that he would not object to a proper amendment of the appellant’s title to the proceedings.  The court said:

“The legal position is quite clear.  The sole proprietor of a business cannot sue in the name of that business if that name is not his own name.  He should not even sue in his own name trading in the business name.  He should sue in his own name simpliciter and then in the body of the plaint he can say that he carries on business in the name of whatever his business name happens to be and is the sole proprietor of that business.  This is technically the correct procedure but nowadays rectification is allowed so easily that the matter is merely a technicality.”

The Business Names Registration Act cap 109 defines a “Business name” to mean under section 1 (1) (b) thereof “the name or style under which any business is carried on, whether in partnership or otherwise”. (emphasis added). A firm means under (d) “firm” means an unincorporated body of two or more individuals, or one or more individuals and one or more corporations, or two or more corporations, who have entered into partnership with one another with a view to carrying on business for profit;”

On the other hand the Partnership Act cap 114 defines the term “firm” to mean under section 5 of the Act “Persons who have entered into partnership with one another are, for the purposes of this Act, called collectively a firm, and the name under which their business is carried on is called the firm name.”

The question before me narrows down to establishment of whether there was an error of drafting and misnomer or whether there is a question of identity and capacity to sue.

As far as the facts of this case are concerned it is not clear whether the applicant is a partnership or a sole proprietorship. In miscellaneous application number 74 of 2010 Mr R.V. Keshwala in an affidavit filed on the court record describes himself as a male adult businessman and managing partner of the applicant. The registered trademark is in the names of V.G. Keshwala and sons. Secondly the affidavit of Abdul Jamal in reply to the application attaches annexure “C” which is a statement of claim under the Trade Marks Act in which the firm V.G. Keshwala & Sons state that they are a firm duly registered under the registration of the Business Names Act cap 109. The court takes judicial notice of this application which is an application for a temporary injunction and is on court record and arises from High Court civil suit number 43 of 2010. Suits by or against firms or persons carrying on business a name other than their own name is governed by order 30 of the Civil Procedure Rules. Suits by partners and persons in their individual capacities  carrying on business in other names other than their surnames is governed by different rules under order 30 of the CPR. Order 30 rule 1 governs suits by partnerships and provides:

1.      Suing of partners in name of firm.

Any two or more persons claiming or being liable as partners and carrying on business in Uganda may sue or be sued in the name of the firm, if any, of which those persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in the firm, to be furnished and verified in such manner as the court may direct. (Emphasis mine)

2. Disclosure of partners’ names.

(1) Where a suit is instituted by partners in the name of their firm, the plaintiffs or their advocate shall, on demand in writing by or on behalf of any defendant, immediately declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the suit is instituted.

(2) Where the plaintiffs or their advocate fail to comply with any demand made under sub rule (1) of this rule, all proceedings in the suit may, upon an application for that purpose, be stayed upon such terms as the court may direct.

(3) Where the names of the partners are declared in the manner referred to in sub rule (1) of this rule, the suit shall proceed in the same manner, and the same consequences in all respects shall follow, as if they had been named as plaintiffs in the plaint; except that all the proceedings shall nevertheless continue in the name of the firm.

On the other hand suits by sole proprietors trading under a different name is governed by order 30 rules 10 of the CPR which provides:

10. Suits against person carrying on business in name other than his or her own.

Any person carrying on business in a name or style other than his or her own name may be sued in that name or style as if it were a firm name; and, so far as the nature of the case will permit, all rules under this Order shall apply.

Order 30 rules 1 of the Civil Procedure Rules allows two or more persons liable as partners to sue in the names of the firm if any and the defendant is entitled to apply for a statement of the names and addresses of the partners. This is what was considered in the case of Reliable African Insurance Agencies (supra). In case a person who is a sole proprietor carries on business in another name other than his or her own name, he or she may be sued in the firm name. The provision does not allow a suit as plaintiff in the firm name. What is material under rule 10 of order 30 is that the name should be another name other than the surname of the proprietor. The law is confirmed by the decision of Rudd J in Lakhman Ramji v. Shivji Jessa and Sons [1965} EA 125. A sole proprietor cannot sue in the name of the business unless the name is not his own name. The issue of whether the business name of the plaintiff is his own name is material. This is evident from the Business Name Registration Act cap 109. Firms or persons who are to be registered under the Act are firms or persons who carry out businesses under a name which does not consist of a true surname other than his or her true Christian names or initials thereof. Section 2 (1) (2) of the Act are pertinent:

“2. Firms and persons to be registered

(1) Subject to this Act—

(a) every firm having a place of business in Uganda and carrying on business under a business name which does not consist of the true surnames of all partners who are individuals and the corporate names of all partners who are corporations without any addition other than the true Christian names of individual partners or initials of such Christian names;

(b) every individual having a place of business in Uganda and carrying on business under a business name which does not consist of a true surname without any addition other than his or   her true Christian names or the initials thereof;

(c) every individual or firm having a place of business in Uganda who, or a member of which, has either before or after the passing of this Act changed his or her name, except in the case of a woman in consequence of marriage, shall be registered in the manner directed by this Act.

(2) Notwithstanding subsection (1)—

(a) where two or more individual partners have the same surname, the addition of an “s” at the end of that surname shall not of itself render registration necessary;...”

In this case the affidavit of the applicant affirms clearly that: “I V.G. KESHWALA”. The Trade Mark sought to be protected is registered by V.G. KESHWALA AND SONS. The Plaint is in the names of V.G. Keshwala and Sons. The decision of Lahman Ramji (Supra) is distinguishable in that the business name did not consist of the names of the proprietor. In this case, the applicant wants to substitute the Business name with his own name and claims to be a sole proprietor. Apart from the addition of the word “sons” the business name and the surname of the applicant are the same. Secondly the record of the court reveals that there is a contradiction leading to doubt as to whether the names “V.G. Keshwala and Sons” belongs to a partnership or a sole proprietorship. I therefore agree with the respondents counsel that this is not a question of a bona fide mistake or misnomer which may be cured by amendment.  It concerns the identity of the applicant as to whether it is truly a sole proprietorship or a partnership. If it was a partnership before and has now become a sole proprietorship more facts have to be disclosed. It is my finding that there was no misnomer. In any case the Trade Mark is in the names of V.G. Keshwala and Sons and the case of Ramji vs. Jessa (Supra) suggests that it is not fatal per se to sue in the name of the business subject to the requirement of order 30 rule 1 or 10 and the provisions of the Business Names Registration Act cited above and the right of amendment without prejudice.  I am not prepared at this stage to decide whether the suit is a nullity or an irregularity on record without further evidence or submissions.

As far objection to the application on the ground of a defective affidavit is concerned, an individual can affirm an affidavit in support of an application by a “firm”. As to whether the plaintiff and applicant are different persons are matters of interpretation and on the merits and not obvious falsehoods.

In the premises, the amendments sought relate to the question of identity which is material as far as the merits of the suit are concerned.

In the premises the applicant’s application for amendment relating to the name of the applicant is untenable and cannot be allowed on the basis of materials on record. It follows that it cannot be concluded without further evidence that the applicant is the proper party to bring this application.

The so called inconsistencies or incoherencies relating to identity are not matters to be taken lightly and require further investigation. Previous proceedings were brought in a Business Name which is the name under which the trademark is registered. The previous proceedings suggest a partnership and not sole proprietorship. In the premises, the applicant’s application for amendment of the plaint stands dismissed with costs.

Ruling delivered in court this 9^th day of December 2011

Hon. Christopher Madrama

Judge

In the presence of:

No parties or lawyers present:

Patricia Akanyo Ag. Court Clerk

Hon. Mr. Justice Christopher Madrama

9^th December 2011