[2024] UGHC 707

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORTPORTAL HCT-00-CV-CS-015 OF 2019 BYAMUKAMA NULU :::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF VERSUS UGANDA NATIONAL ROADS AUTHORITY ::::::::::::::DEFENDANT**

#### **BEFORE: HON. MR. JUSTICE VINCENT EMMY MUGABO**

## **RULING ON PRELIMINARY OBJECTIONS**

#### **Introduction**

This ruling arises out of preliminary points of law raised by the counsel for the defendant that the amended plaint should be rejected for, (i) having amendments not allowed by the court, and (ii) having been served out of time; and that the instant suit abated under the provisions of Order 17 Rule 5 of the Civil Procedure Rules.

#### **Background**

The plaintiff filed Civil Suit No. 15 of 2019 against the defendant for a declaration that the defendant trespassed on the suit's land, special damages of UGX. 1 billion, general damages and costs of the suit.

The Court heard and closed the plaintiff's case. On 28th February 2022, this court reopened the plaintiff's case, and the plaintiff was allowed to amend the plaint to include the monetary value of the property that was damaged based on the assessment and valuation report.

When the matter came for further hearing of the plaintiff's case, counsel for the defendant raised preliminary objections to the effect that the amended plaint should be rejected for, (i) having amendments not allowed by the court, and (ii) having been served out of time; and that the instant suit abated under the provisions of Order 17 Rule 5 of the Civil Procedure Rules. This ruling is on the preliminary points of law raised by counsel for the defendant.

# **Representation and Hearing**

At the hearing, the plaintiff was represented by Mr. Muhumuza Joseph while the defendant was represented by Mr. Muhangi Henry. Both counsel made oral submissions which I have considered in this ruling.

## **Issues for determination**

The issues for determination are:

- (i) Whether the amended plaint should be rejected for including amendments not permitted by the court or having been served out of time. - (ii) Whether the instant suit abated under Order 17 Rule 5 of the Civil Procedure Rules.

## **Submissions by Counsel for the Defendant**

On the nature of the amendment counsel for the defendant argued that the plaintiff sought to amend paragraph 7 of the original plaint to include the monetary value of the destroyed property but ended up amending paragraphs 3 and 4. Counsel also submitted that the amended plaint is shorter and excludes the annexures which are exhibits that are already on the court record. Counsel also submitted that paragraphs 6 and 8 of the original plaint had been deleted and that the amendment aimed at defeating the evidence already filed before the court.

On the issue of service of the amended plaint out of time, counsel for the defendant submitted that this court, on the 28th of February 2022, made an order directing the plaintiff to file and serve his amended plaint within 10 days but the plaintiff served the amended plaint to the defendant on the 17th of April 2022 about 47 days without the leave of court.

Counsel argued that by serving the amended plaint out of time, the applicant has lost the right to amend the plaint.

On issue 2, counsel for the defendant submitted that the instant suit abated under order 17 rule 5 of the Civil Procedure Rules, as amended, since the last time the matter came for ruling was 28th February 2022 and the plaintiff did not take any step until 26th March 2024 when a hearing notice was extracted and served on the defendant.

Counsel argued that since no step had been taken in 6 months, then the suit had automatically abated under Order 17 Rule 5 of the Civil Procedure Rules.

# **Submissions by Counsel for the Plaintiff**

On the 1st issue, counsel for the plaintiff argued that Order 6 Rule 25 of the Civil Procedure Rules restricts filing out of time and not service out of time. Counsel argued that the amendment was done in time and therefore the preliminary objection raised by counsel is unfounded.

As to whether the amendment was shorter than what was formerly pleaded in the original plaint, counsel for the plaintiff argued that the amended plaint was intended to give particulars of the special damages by way of introducing the assessment of the suit property, and this was specifically and appropriately done.

On the 2nd issue, counsel for the plaintiff argued that Order 17 Rule 5 of the Civil Procedure Rules is inapplicable in the instant suit. Counsel argued that the suit abates if no step is taken after mandatory scheduling. However, the instant suit had proceeded to the hearing stage.

# **Submissions in Rejoinder by Counsel for the Defendant**

In rejoinder, counsel for the defendant conceded that the matter had already been scheduled and proceeded with the evidence of the plaintiff.

On the issue of failure to serve the amended plaint in time, counsel argued that the orders of the court under Msc. Application No. 52 of 2021 were that the plaintiff shall file and serve the amended plaint within 10 days after the ruling, and this order was not complied with.

On the nature of the plaint, counsel rejoined that the amendment that was made was more than what was allowed by the court and the amended plaint is substantially different from the original plaint which renders the evidence on record inapplicable especially the exhibits that have already been admitted.

#### **Consideration by Court**.

**Issue 1: Whether the amended plaint should be rejected for including amendments not permitted by the court or having been served out of time.**

In the case of *Mulowoza & Brothers Ltd Vs. N. Shah & Co. Ltd SCCA No. 26 of 2010,* the Supreme Court held that:

> *"Amendments are allowed by courts so that the real question in controversy between the parties is determined and justice is administered without undue regard to technicalities in accordance with Article 126(2) (e) of the Constitution. Therefore, if a plaintiff applies for leave to amend his pleadings, courts should in the interest of promoting justice, freely allow him to do so unless this would cause an injustice to the opposite party which cannot be*

*compensated for by an award of costs, or unless the amendment would introduce a distinct cause of action in place of the original cause."*

Citing the case of *Eastern Bakery Vs. Castelino* **[1958] E. A 461,** the Supreme Court went on to state that:

> *"...the court will not refuse to allow an amendment simply because it introduces a new case .... but there is no power to enable one distinct cause of action to be substituted for another ... the court will refuse leave to amend where the amendment would change the action into one of a substantially different character... or where the amendment would prejudice the rights of the opposite party existing at the date of the proposed amendment e.g. by depriving him of a defence of limitation***."**

In the instant case, the plaintiff sought leave of this court to amend his plaint to include the monetary value of the property damaged and destroyed under paragraph 7 of the original plaint based on the assessment and valuation report, as well as a list of witnesses and documents to accommodate the assessment and valuation report. This court granted leave to the applicant in terms of the proposed amendments.

I have heard the benefit of looking at both the original plaint and the amended one and concluded that both plaints are the same in character, and the amended one does not introduce a different cause of action than what was originally pleaded. On the whole, the substantial amendment introduced in the amended plaint is the total value of the special damages which is essentially the basis of granting the order for amendment. It is my considered view that the amended plaint is within the limits envisaged by the courts as per the authority

## in *Mulowoza & Brothers Ltd Vs. N. Shah & Co. Ltd (supra)*

Therefore, the preliminary objection raised by counsel for the defendant regarding the nature of the amended plaint is overruled.

As regards the service of the plaint, the order of this court handed down on the 28th of February 2022 was explicit: the plaintiff was to file the amended plaint in the court within 10 days from the date of the ruling. However, the same order is silent on the date of service of the amended plaint.

Order 6 Rule 23 of the Civil Procedure Rules provides for the filing and service of amendments. It provides thus:

## *"23. Amendment to be filed and served.*

*Whenever any pleading is amended, the amended document shall be filed within the time allowed for amending the pleading; and where the filing occurs before the date specified in the summons for the appearance of or the entering of appearance by the defendant, then a duplicate of the amended document shall be served upon the opposite party in the manner* *provided for the service of a summons, but where the amended document is filed after that date, a duplicate of the amended document shall be delivered to the opposite party by the party filing."*

To my understanding, Order 6 Rule 23 of the Civil Procedure Rules does not prescribe the time within which to serve an amendment for a party which has filed an amendment at the time when the case is already under hearing. What one needs to do is simply deliver a duplicate of the amended document to the opposite party.

However, where the filing of the amendment is done before the date of expiry of the summons to file the defence, normal rules of service of a summons apply.

Nonetheless, it is my considered opinion that Order 6 Rule 23 of the Civil Procedure Rules presumes that a litigant, who has filed an amendment during the hearing, like in the instant case, will serve the amendment to the opposite party within a reasonable time. What is a reasonable time, however, depends on the circumstances of the case.

In the case of *Formula Feeds Limited & 3 Others Ltd Vs. KCB Bank Limited Misc. Application No. 1647 of 2022,* Hon Justice Stephen Mubiru held that:

> *"Whether delay is unreasonable will depend on the peculiar facts of each case. Delay must be assessed according to the circumstances of each*

*case. The reckoning of time to determine if a delay is unreasonable begins at the time the decree or order is sealed and becomes enforceable."*

Section 34(2) of the Interpretation Act Cap. 2 is to the effect that where no time is prescribed or allowed within which anything shall be done, that thing shall be done without unreasonable delay and as often as due occasion arises.

In the instant case, the defendant had appeared in court on several occasions, and the matter had proceeded to a hearing, at the time this court allowed the amendment. The plaintiff filed the amendment in this court, in time, on the 10th of March 2022 and served the applicant on the 27th of April 2022. The parties had last appeared in court on the 28th of February 2022 with no appointed date for the next appearance.

In the premises, in the absence of a specified time within which the plaintiff was to serve the amended plaint, I find that the service of the amended plaint, which was filed on the 10th of March 2022, on the defendant on the 27th of April 2022 was executed without unreasonable delay.

Therefore, the objection raised by counsel for the defendant regarding the time of service of the amended plaint is accordingly overruled.

## **Issue 2: Whether the instant suit abated under Order 17 Rule 5 of the Civil Procedure Rules.**

Rule 5 of Order 17 of the Civil Procedure Rules under which counsel for the defendant raised the preliminary objection provides that:

> *"If the plaintiff does not within eight weeks from the delivery of any defence, or, where a counterclaim is pleaded, then within ten weeks from the delivery of the counterclaim, set down the suit for hearing, then the defendant may either set down the suit for hearing or apply to the court to dismiss the suit for want of prosecution, and on the hearing of the application the court may order the suit to be dismissed accordingly, or may make such other order, and on such terms, as to the court may seem just."*

As stated earlier, this suit is at the hearing stage. The plaintiff has already led evidence from three witnesses and had closed his case, but it was reopened vide Misc. Application No. 52 of 2021. Thus, it cannot be said that the plaintiff has failed to prosecute his case. I find that the rule cited by counsel is inapplicable to the circumstances of the case.

Therefore, the objection raised by counsel for the defendant concerning abatement of the instant suit is equally overruled.

Resultantly, the preliminary objections raised by counsel for the defendant are overruled. The matter shall be heard on merit and is hereby fixed for further hearing of the plaintiff's case on the **23rd of August 2024 at 9: 00 am.**

It is so ordered.

Dated at Fort Portal this 12th day of July 2024.

**Vincent Emmy Mugabo Judge**