THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISC. APPLICATION NO. 889 OF 2013

(ARISING OUT OF CIVIL SUIT NO. 503 OF 2013)

HAG SOLUTIONS LTD & 2 OTHERS::::::::::::::::::::::::::::::::::::::APPLICANTS

VERSUS

RIVIERA INTERNATIONAL LTD:::::::::::::::::::::::::::::::::::::::::RESPONDENT

BEFORE THE HON. JUSTICE HENRY PETER ADONYO

RULING

This application was filed on 10^th October, 2013, it was on signed and sealed by Court on 30^th April, 2014 and fixed for hearing on 14^th May, 2014 which was the only available date convenient to Court to entertain this matter.

The Applicant seeks leave to amend that Written Statement of Defence and costs for the same. The application is brought under Order 6 rule 19 and 31 of the Civil Procedure Rule and Section 98 of the Civil Procedure Rule. It is also supported by the affidavits of Henry Gashumba 2^nd Applicant and Alex Kabango 3^rd Applicant and the grounds is briefly that;

1. The amendment is necessary for purposes of determining the real questions in controversy between the parties
2. The amendment isf allowed will not prejudice the Respondent in any way but just let justice not only to be done but be seen to prevail.

Order 6 rule 19 of the Civil Procedure Rule provides that “The Court may at any stage of the proceeding allow either party to alter or amend her pleadings in such manner and on such terms as may be just and all such amendments shall be made as may necessary for the purposes of determining the real questions in controversy between the parties”.

The Applicant avers that the real controversy between the parties here arises from the product supply agreement which was signed on 14^th January, 2013, particularly the letter dated 15^th August, 2013 of which had not been availed to the Advocate who prepared and filed the Written Statement of Defence while the Defendnat had travelled to South Sudan to obtain the necessary documents as per parargraphs 6,7,8,9, and 10 of the affidavit in support deponed by Henry Gashumba.

Section 33 of the Judicature Act provides that:

 “The High Court shall in the exercise of the jurisdiction vested in it by the constitution, this Act or any written Law granted absolutely or on such terms and conditions as it thinks just all such remedies as any of the parties to a cause or matter is entitled to in repect of any legal or equitable claim properly brought before it, so that in so far as possible all matters in contoversy between the parties may be completely and finally determined and all multiplications of legal proceedings concerning any of thses matters avoided”

Section 98 of the Civil Procedure Act further provides that;

 “Nothing in this Act shall be deemed to limit or otherwise affect the inhernt power of the Court to make such orders as may be necesaary for the ends of justice or prevent abuse of Court process”.

 It is trite Law that amendments will freely be allowed provided they do not prejudice the adverse party e.g. by introducing a new cause of action. In the instance case, the pleading sought to be amended is a written statement of Defence. It certainly cannot introduce a cuse of action but answers to the plaint.

The Applicant strongly submits that such an amendment if allowed shall not in any way prejudice the Respondent but simply answers the claim with the aim of determining the real controversy between the parties as laid down in paragraphs 6, 7,8,9,10,11 and 12 of the supporting affidavit of HENRY GASHUMBA, and in paragraphs 9, 10,11,12,13, 14 and 18 of the draft amendment attached thereto and marked annexture “B”

Article126 (2) (e) of the Constitution of Uganda enjoins this Honourable Court in the adjudiction of cases to administer substantive justice without undue regard to technicalities. It is therfore our humble submision that any case is curable under the foregoing provision of the law and it is the prayers of the Applicant that the Applicant be granted leave to amend the Written Statement of Defence.

The second order being sought from this Honourable Court is that provision be made for the costs of this application section 27(1) of the Civil Procedure Act provides that; “Subject to such conditions limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of ans incident to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent those costs are to be paid and to give all necessary directions for the purposes aforesaid”

Thus was the position in the case M/S Pago (U) Ltd versus Fort Portal Municipal Council Civil Appeal No. 28 of 2006 [2008] ULR 345.

It is trite Law that costs follows on the event and it is our submission that in the event that this application is allowed that an award for the costs be made to the Applicant.

Resolution of this Matter

Having considered the submission of the Applicant and the Affidavit in support, this court finds that the Applicant has made a case for the grant of the orders sought and it is the view of this court that the orders sought would not prejudice the interest of the Respondent such that the real issues in controversy are tried inter parties. This court exercises its discretion as stated above and grants the orders sought.

Orders

1. The Applicant is granted leave to amend the Written Statement of defence within ten (10) days from today.
2. Costs of the Application to be in the cause

Henry Peter Adonyo

Judge

13^th June 2014