[2000] UGCA 58

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CIVIL APPLICATION NO.20 OF 2OOO

# CORAM: HON. MR. JUSTICE C. M. KATO, JA. HON. LADY JUSTICE A. E. N. MPAGI. BAHIGEINE,JA. HON. MR. JUSTICE J. P. BERKO, JA.

NATURE GREEN LTD . APPL!CANT

### VERSUS

# KATATUMBA PROPERTIES LTD RESPONDENT

### RULING OF THE COURT

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20 This was an application by way of Notice of Motion under Rule 39 (1)(b) of the rules of this court, for leave to appeal against the ruling and orders of the High Court in Misc. Application No. 1488 of ¹999. (Ntabgoba P. J.) dated 41212000.

The grounds for the application which are set out in the Notice of Motion are that:

"(i) the respondent's suit No. 1248 of 1998 has no cause of action and it ought to have been struck out.

(ii) ffie substitution of parties in the said suit was a nullity at law.

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- (iii) the decision intended to be appealed involves subsfantial questions of law which are likely to cause a miscarriage of justice if leave to appeal is not granted to the applicant. - l0 (iv) the applicant applied for leave to appeal to the High Court which was denied. - (v) there is an arguable case and therefore in the rnferesfs of justice leave to appeal should be granted".

The application was supported by an affidavit deponed to by Mr. Wasswa Biriggwa, a director in the applicant company, and was dated 111412000.

!n reply Mr. Boney Katatumba, Managing Director of Katatumba Properties Ltd swore and filed in an affidavit dated 261512000.

The background to this matter is that when HCCS No. 1248199 was called on for hearing, counsel for the applicant applied to have it struck out for not disclosing a cause of action. lt had been brought in the names of Mr. Boney Katatumba who had signed the lease agreement which was the subject matter of the suit, but had given a Power of

Attorney "Annex A" to M/s. Katatumba Properties Ltd to manage his interest in the suit property. During argument the learned Principal Judge allowed an amendment sought informally to substitute the plaintiff Company in place of Mr. Boney Katatumba. The hearing of the suit proceeded after the amendment until at a later stage, counsel for the applicant brought up the issue of the amendment once again, challenging it on the ground that it was a nullity as it had introduced a new party to the proceedings in order to create a cause of action against the applicant which had been lacking in the first place. The applicant objected to the proceedings and sought Ieave to appeal which leave was refused by the trial court.

The applicant now seeks leave of this court to appeal alleging serious questions of law and fact which he claims will be canvassed on appeal. He alleges that there was no cause of action and that the amendment was a nullity.

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Mr. [Vlukasa for the respondent opposed the application on the ground that the amendment which was sought informally was granted on 2413199 under 01 r 10 Civil Procedure Rules. lt was never objected to and an amended plaint was filed on 714199 pursuant to the order of 2413199. The defendant's counsel was served promptly on 1214199. Thereafter the hearing proceeded in the High Court until 41212000 when counsel remembered to object to the amendment, almost a year later. The learned Principal Judge overruled the objection.

Rule 39(1Xb) of the Rules of this court provides that the Court of Appeal will grant leave to appeal only if there is a prima facie case that an error has been made or if the intended appeal raises one or more matters of public or genera! importance which would be proper for the court to review in order to see that justice is done. - Buckle ^v Holmes, (1926) 2 KB at 127;- Sango Bay Estates Ltd. and Others v Dresdner Bank - A. G. (1971) EA 17.

The learned Principal Judge allowed the amendment under O 1 r 10 Civil Procedure Rules which states:

> "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 ffi?y, if satisfied that it has been so commenced through a bona fide mistake, and it is necessary for the determination of the real matter in dispufe so fo do, order any other person to be substituted or added as plaintiff upon such terms as may be just".

It is noteworthy, the hearing proceeded normally until a year later when counsel for the applicant strangely decided to object. We heard some protracted arguments in the matter but we can straight away say that there is no merit in this application. The learned Principal Judge properly allowed the amendment. The intended appeal would only be frivolous. Before we take leave of

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this matter, we would remark, however, that the amendment whereby the company was substituted for Mr. Boney Katatumba was unnecessary. This was because as Mr. Boney Katatumba was the principal and the company was only his agent the principal was properly before the court. The application for leave to appeal is thus dismissed with costs.

IL Dated at Kampala this ...1.. L

fr C. M. Kato

Justice of Appeal

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E. N. Justice of A.

^| J. P. J of Appeal.

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