[2021] UGIC 4
The court found that the misnaming of the appellant in the decree as 'KCB (U) Bank Ltd.' instead of the registered 'KCB Bank (U) Limited' was a mistake made by the labour officer and not a substantive defect. The court held that this constituted a misnomer, which is curable by amendment under the authorities cited....
Source-derived case information.
- Citation
- [2021] UGIC 4
- Parties
- Appellant: KCB Bank (U) Limited; Respondent: Kabajulizi Anualrite
- Court
- Industrial Court of Uganda
- Jurisdiction
- Uganda
- Case Number
- Labour Dispute Appeal No. 16 of 2019
- Procedural Posture
- Labour Dispute Appeal / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled
- Judges
- Ruhinda-Ntengye, J, Tumusiime-Mugisha, J
- Legal Topics
- Misnomer in Pleadings, Corporate Personality, Amendment of Pleadings, Labour Termination Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
KCB Bank (U) Limited
Appellant
Kabajulizi Anualrite
Respondent
Procedural Posture
Labour Dispute Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the appeal was filed by a non-existent party due to a misnomer in the appellant's name.
- 2 Whether a misnomer in the naming of a party can be cured by amendment or is fatal to the proceedings.
Ratio Decidendi
The court found that the misnaming of the appellant in the decree as 'KCB (U) Bank Ltd.' instead of the registered 'KCB Bank (U) Limited' was a mistake made by the labour officer and not a substantive defect. The court held that this constituted a misnomer, which is curable by amendment under the authorities cited. Since the identity of the appellant was clear and the original claim used the correct registered name, the error in the head title of the decree did not invalidate the appeal. The court therefore overruled the preliminary objection, holding that the appeal was properly before the court despite the misnomer.
Court Disposition
preliminary objection overruled
Orders
- The preliminary objection is overruled.
- The appeal shall proceed on its merits.
Full Case Text
Judgment text and source record
29 paragraphs
# **REPUBLIC OF UGANDA IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA LABOUR DISPUTE APPPEAL No. 16 OF 2019 [ARISING FROM KCCA/CEN/LC/092/2019)**
# **BETWEEN**
| KCB BANK (U) | | |--------------------------------------------|--| | LIMITED……………………………………………………………………APPELLANT | |
## **VERSUS**
# **KABAJULIZI**
| ANUALRITE.………………………………………………………RESPONDENT | | |-------------------------------------------|--| | | |
#### **BEFORE**
- 1. Hon. Chief Judge Ruhinda Ntengye - 2. Hon. Lady Justice Linda Tumusiime Mugisha
## **PANELISTS**
- 1. Mr. Rwomushana Reuben Jack - 2. Ms. Mugambwa Harriet Nganzi - 3. Ms. Rose Gidongo
## **RULING ON PRELIMINARY OBJECTION**
#### **Background**
The facts as enumerated by the labour officer are:
The respondent, Kabajulizi was an employee of KCB Bank (U) Ltd. On 18th of December 2017 she received a letter from the Human Resource Manager requiring an explanation about a certain transaction and following her explanation she was summoned to a disciplinary hearing after which
she was terminated. The labour officer decided in favor of the respondent and because the appellant was aggrieved by the decision it appealed to this court. On filing the appeal, the appellant was named as "KCB(U) BANK LIMITED".
Before the appeal could be heard the respondent raised a preliminary objection that the "**appeal was filed by a non-existent party as there is no entity with the name "KCB (U)BANK Ltd."**
The appellant was represented by Mr. Godfrey Himbaza while the respondent was represented by Mr. Nuwandinda Jonan Rwambuka both of M. OSH Advocates & Legal Consultants and M/s. Rwambuka & Co. Advocates respectively.
It was argued strongly by the respondent that an entity called **KCB (U) Ltd"** was not registered by the Registrar General and therefore it did not exist in law and could not sue or be sued. The respondent relied on a letter from the Registrar General and the case of **Wasswa Primo Vs Moulders (U) Limited M. A. 685/2017.**
The appellant argued strongly that the issue of names was a misnomer that could be cured by court especially when the original claim before the labour officer was in the same names as registered with the Registrar General. The appellant relied on the case of **Kilembe Mines (U) Ltd Vs Uganda Gold Mines Ltd M. A. 312/2012**.
We have perused and internalized both authorities relied upon by both counsel. The effect of the case of **Wasswa Primo** is that a suit filed by a non-existent person is not a suit filed in court since a non-existent person cannot sue or be sued.
The effect of the case of **Kilembe Mines** is that a misnomer being a mistake in naming a person, place or thing in a legal instrument can be corrected by amendment and that since none of such cases involve misnaming the defendant, amendment would ordinarily be made under **Order 1 rule 10 of CPR.**
The case of **Kilembe Mines** was relied upon by Hon. Justice Henry Peter Adonyo in the case of **Charles Van Der Pierre Vs Pinnacle Security Services Ltd./SPC Protectorate & Anor – Civil Suit 599/2013 –** Commercial Division.
In the instant case the proceedings in the labour office show that the complainant brought the complaint against **KCB Bank (U) Ltd** and yet the decree extracted by the same labour officer bore the names of **"KCB(U) Bank Ltd."** It is interesting to note that in the second paragraph of the decree the respondent is named KCB BANK(U) LIMITED
It can clearly be seen that that the Labour officer is the one who made a mistake by naming the appellant **"KCB(U)Bank Ltd"** while extracting the decree Instead of **"KCB Bank (U) Limited"**, the registered name of the appellant as shown by the respondent in the letter from the Registrar General, R3. Even then the misnaming was in the Head Title and not in the body of the decree. In our view the Appeal having been registered in the name that the decree prescribed in the Head Title, the mistake of the labour officer (or even of Court), could not invalidate the Appeal Consequently, we consider the mistake as a misnomer within the precincts of the authorities of **Kilembe Mines Limited Vs Uganda Gold Mines Ltd (supra) and Charles Van Der Perre Vs Pinnacle security Services (supra**) and we therefore overrule the preliminary objection.
#### **DELIVERED & SIGNED BY:**
| 1. | Hon. Chief Judge Ruhinda Ntengye | ……………………. | |----|-------------------------------------------|-----------| | 2. | Hon. Lady Justice Linda Tumusiime Mugisha | ……………………. |
#### **PANELISTS**
| 1. | Mr. Rwomushana Reuben Jack<br>……………………. | |----|------------------------------------------| | 2. | Ms. Mugambwa Harriet Nganzi<br>……………………. | | 3. | Ms. Rose Gidongo<br>……………………. |
Dated: 22/01/2021