[2023] UGSC 75

### THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

#### **TIBATEMWA-**[CORAM: OWINY-DOLLO,C. J; MWONDHA; EKIRIKUBINZA: TUHAISE; CHIBITA, JJSCJ.

#### CIVIL APPEAL No.30 OF 2020

#### BETWEEN

#### SABRIC INTERNATIONAL LIMITED:::::::::::::::::::::::::::: APPELLANT 15

#### AND

#### ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

*[An appeal from the decision of the Court of Appeal at Kampala before:* 20 (Hon. Justices: Elizabeth Musoke; Cheborion Barishaki and Remmy Kasule, JJA) in Civil Appeal No.21 of 2015 dated 31^st August 2020.

**Representation:** *The Appellant company was represented by* Counsel Okello Oryem of Okello Oryem & Co. Advocates.

> There was no official from the appellant company present in Court

The Respondent was represented by Counsel Goretti Arinaitwe from The chambers of the Attorney General.

Both counsel filed written submissions which the *Court will base on in determination of the appeal.*

$L. \overline{L}$

being bad in law and for its failure to disclose a cause of action. Court $5$ further held that since the Plaintiff was non-existent, no orders as to costs were to be made.

Dissatisfied with the said Ruling, the appellant company lodged an appeal in the Court of Appeal vide Civil Appeal No. 21 of 2015; SABRIC INTERNATIONAL LTD (erroneously stated in the plaint as Sabric Building & Decorating Constructors Ltd) v Attorney General.

The Court of Appeal dismissed the appeal by a majority of 2:1. The main contention in the appeal was whether Section 100 of the Civil Procedure Act allows court through amendment to substitute a nonexistent person.

The majority Justices of Appeal held that the settled position of law was that a suit in the names of a wrong plaintiff or defendant cannot be cured by amendment.

The majority Justices further held that an unincorporated association is not a legal entity capable of suing or being sued. A suit by an unincorporated body is a nullity.

On the other hand, the dissenting Judge (Musoke, JA) held that the laws of Uganda permit the substitution of a wrong non-existent party for the right one in appropriate circumstances. She reasoned that what is important in such cases is ensuring that all the matters in controversy are considered by the Court and that the party which is sought to be substituted for the non-existent plaintiff has sufficient connection to the dispute.

Dissatisfied with the majority decision, the appellant appealed to this Court on grounds that:

1. The learned majority justices of the Court of appeal erred in law and fact in holding that the Appellant was a nonexistent party in total disregard of the prima facie evidence adduced by the appellant at the hearing in the High Court and the evidence accompanying the plaint, written statement of defence and counter claim wherein it is not denied that the appellant executed the contract with the

$\overline{3}$

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Respondent by renovating Masaka Army Barracks thereby occasioning miscarriage of justice.

- 2. The learned majority justices of the Court of Appeal erred in law and fact in holding that an error and/ or misnomer describing the appellant as Sabric Building and $\bold{in}$ Decorating Contractors Ltd in the plaint before the trial Court could not in all the circumstances of the Appeal be cured by an amendment under Section 100 of the Civil Procedure Act and/ or Order 1, R. 10 of the Civil Procedure Rules thereby causing a miscarriage of justice. - 3. The learned majority justices of the Court of Appeal erred in law and fact in holding that the Appellant as the incorporated entity that contracted with the respondent's agent could not replace Sabric Building and Decorating Contractors Ltd the non-registered entity by amending the plaint.

### **Prayers**

The appellant prayed that the appeal is allowed and HCCS No.173 of 2010 be reinstated and amended to indicate Sabric International Limited as the plaintiff therein and the matter be heard on its merit in the High Court.

The appellant also prayed for costs of the appeal here and below.

# Parties' submissions

Both the Appellant and the Respondent argued the three (3) grounds of appeal together. The appellant submitted that the issue to be resolved in the three grounds is: *whether there was a misnomer in the name of the Plaintiff company in the original suit which is curable on the basis of the written law and authorities or not.*

### Appellant's submissions

Counsel submitted that there was a misnomer in the appellant's name as evidenced on the record. Counsel pointed out that, the 35 proper party to the contracts was Sabric International Limited (the

$\mathsf{S}$

present appellant). Counsel therefore argued that it was a mere $\mathsf{S}$ misnomer to name and describe the plaintiff as Sabric building and Decorating Contractors Limited in the plaint filed at the trial court. That at all material times, the respondent knew the proper party to the contracts as well as the suit. Therefore, the Respondent was not misled and suffered no injustice. The respondent was able to file a 10 defence to the suit and even raised a counter claim. That therefore, the respondent knew the proper party to the suit and the party it had contracted to carry out the renovations and even subsequently advanced some money. Counsel also argued that in the event that the trial Court had found merit in the counter claim, it would mean 15 that the respondent would have to recover its money from a non-

existent party.

In light of the foregoing, counsel submitted that what was required of the trial Court was to invoke the provisions of Section 100 of the Civil Procedure Act to make the necessary amendments, correct the misnomer and hear the suit to its conclusion.

Counsel further submitted that the position of the law (that the Court has no discretion to order an amendment to replace a non-existent party) relied upon by the majority Justices of Appeal was not applicable to the instant case because the original suit was filed by a duly incorporated legal entity but whose name was erroneously cited in the pleadings. That the learned majority Justices of Appeal indeed noted that the unassailable evidence placed before the trial Court proved that the appellant which is a duly incorporated and existent legal entity was erroneously described by a different name that does not exist. Therefore, the suit was not filed by a wrong party. It was filed by a proper party erroneously described by a wrong name.

Counsel maintained that there was evidence on record to prove that the appellant was duly incorporated and contracted by the defendant. Counsel referred to several documents to support the foregoing assertion. The first document appears at page 105 of the record - the Memorandum and Articles of Association of Sabric International Limited.

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The second document referred to was the certificate of incorporation $5$ of the appellant in the names of Sabric International Limited.

The third document was the letter awarding the contract to Sabric International Limited to carry out renovation works, marked annexure B, which appears on the Record at page 127.

The fourth document was a letter dated $2^{nd}$ June 2008 signed by 10 Edward Luyinda the Managing Director of Sabric International Limited addressed to the commander Engineering Brigade UPDF. It appears on record at page 127.

The fifth document referred to appears at page 128 of the record and was marked annexure E; It is an interim certificate for additional 15 works signed by the quantity surveyor, chief architect and construction regiment. The document bears information that the Contractor is Sabric International Limited.

The sixth document appears at page 130, which was a bank guarantee letter by Tropical bank addressed to the Permanent 20 Secretary of the Ministry of Defense, and is marked annexure G. Counsel submitted that the guarantee letter correctly identified the contractor as Sabric International Limited.

Counsel also referred to annexure H appearing on the Record at page 131 which was a debit advice receipt showing partial payment by the 25 Respondent to the appellant for executed work.

Counsel argued that the misnomer occurred in the filing of the suit at the trial Court by using a wrong name for the Plaintiff but that all the documents between the parties bear the correct description and name of the appellant as Sabric International Limited.

From the foregoing documentary evidence on record, counsel argued that the trial Court should have applied Section 100 to amend the pleadings to correct the error and proceeded to complete the hearing of the suit. In support of this argument, counsel relied on the

authority of A. N Fhake vs. World Wide Agencies Ltd (trading as 35

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- **Traders**)^$1$, where the plaint in that case was in the names of Traders $5$ Ltd and an application was filed to amend the plaint to the name World Wide Agencies (trading as Traders). The amendment was allowed and the defendants appealed against the decision raising the arguments that the party who sued did not exist and there should have been no amendment. Sir. Graham Paul. CJ held that: "quite 10 - clearly the plaintiffs' advocate made a mistake of giving the trading name of the plaintiff instead of the real name. That was a mistake in the plaint and the mistake was quite properly corrected by amendment $\ldots$ " - Counsel also relied on the decision of **Shamsherali Zaver Virji Vs.** 15 **F. L. Kadibhai & Others²**, where there was confusion in the names of the parties and Hon. Lady Justice A. E. N. Mpagi Bagheine held that the mix up in the names, causing a suit to be filed in the wrong names, is a mistake that is curable so that the real issues in controversy can be determined. 20

Furthermore, counsel relied on the authority of **Salt works limited** & Another vs. Alimadi Osman³. In that case, the plaintiff was ordered to amend the plaint to delete the words Camel trade promoters from the description of the defendant. They amended the plaint but did not remove this offending description and the trial 25 Judge struck out the plaint. The Judge found that his order to the wrong description of the plaintiff was not done. The plaintiffs appealed to the Court of Appeal. Justice Engwau, JA, held that the learned trial Judge should have read the plaint together with all the annexures as a whole in order to ascertain the description of a person 30 the appellants had intended to sue. In his view, the question is not whom the appellants had intended to sue but rather a reasonable man reading all the documents in the proceedings. Justice Engwau, JA, further held that evidence should have been called because the real defendant would have been identified and the intended 35 defendant who was not a party would have been discharged from the

^&lt;sup>1</sup> (1948) 15 EACA 1.

^&lt;sup>2</sup> Court of Appeal Civil appeal 81 of 2004

^&lt;sup>3</sup> Civil Appeal No.3 of 2002.

suit. He concluded that in the circumstances of that case and looking $5$ at the documents as whole, it was clear that the appellants had intended to sue the respondent but wrote his name wrongly.

Counsel prayed that the Court be persuaded by the authorities cited and allow the appeal.

Counsel emphasized that in the instant case there would have been 10 no injustice occasioned to the respondent if the misnomer had been corrected by amendment of the plaint at the trial. That the trial Court had the powers and duty to do so. On the contrary, by failing to allow the amendment, the appellant was occasioned a grave miscarriage of justice, because it could not be heard and recover the consideration 15

for work done under a valid contract. Furthermore, the appellant could not hold the respondent to account for breach of the contracts.

# **Respondent's submissions**

The Respondent's counsel agreed with the Judgement of the lower court and prayed that it is upheld. Counsel submitted that the court 20 correctly addressed itself on all the issues and properly applied the principles of law on the subject matter before coming to the correct decision.

Counsel contended that the appellant is mistaken in lodging the present appeal which is premised on a misconception that a 25 nonexistent party can be cured by amendment.

Counsel submitted that the Appellant, Sabric Building and Decorating Contractors Limited does not exist as a legal entity and therefore cannot maintain an action as a party to the suit. That in founding a suit, the first move is identification of the parties to the suit. That in the suit filed in the High Court (viz HCCS No 173/2010),

- it is stated that the Plaintiff is Sabric Building and Decorating Contractors Limited and the Plaintiff is described as a limited liability company incorporated in Uganda. - Counsel stated that it was not in dispute that the company known 35 as Sabric Building and Decorating Contractors Limited which filed HCCS No 173/2010 against the Respondent is not an incorporated - entity. Therefore, the appellant's submission that Sabric Building $\mathsf{S}$ and Decorating Contractors Limited was erroneously named instead of Sabric International Limited is untenable because the said company did not exist in the first place. It followed that a non-existing party cannot maintain as a party to the suit, a cause of action in law. - In support of the foregoing submission, counsel referred to the 10 holding by the majority Justices of Appeal that:

"Any entity and/or organization to qualify to institute an action in the courts of law, that entity or organization must be recognized by law since it is an elementary principle of law that an unincorporated organization is not a legal entity capable of suing or being sued. A suit *by an unincorporated body is a nullity".*

Furthermore, counsel relied on the case of **Fort Hall Bakery Supply** Co. Ltd vs Frederick Muigai Wangoe⁴ where the Plaintiffs brought an action for recovery of a sum of money from the Defendant. At the hearing, it turned out that the Plaintiffs were not an incorporated entity. The Court held that:

"A non-existent person cannot sue, and once the court is made aware that the Plaintiff is non-existent, and therefore incapable of maintaining the action, it cannot allow the action to proceed".

Counsel also referred to the case of **Banque International De** 25 Commerce De Petrograd vs Goukassow⁵ which was quoted in the Fort Hall case (supra) where the Government of Russia had by reason of a decree, abolished the Plaintiff bank in its country of origin. On that basis, the court found that the Russian bank had no legal existence anymore and could not therefore maintain the action. At 30 page 688, Scrutton L. J held:

"The party seeking to maintain the action is in the eye of our law no party at all but a mere name only, with no legal existence. A non-existent person cannot sue, and once the court is made aware that the Plaintiff is non-existent, and therefore incapable of

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^&lt;sup>4</sup> [1959] E. A 474

^&lt;sup>5</sup> [1923]2 KB. 682.

name of the company instead of the actual company name to file the $\mathsf{S}$ suit. However, in the present matter, it was not argued that Sabric Building and Decorating Contractors limited was a trading name for Sabric International Limited..."

In respect of the authority of **Shasheraliza Zaver Virj**, counsel submitted that the said case concerned a mix up of names and it is 10 for this reason that the court in that case observed that $a$ mix up in the names was a genuine mistake as names from some ethnic groups *are sometimes not very simple to other groups and vice versa.* Counsel argued that the aforementioned case is not applicable in the circumstances of the present case as there is no way Sabric Building 15 and Decorators Ltd can be mixed up or mistaken for Sabric International Limited.

Regarding the Mombasa Salt Works Ltd authority, counsel submitted that it was distinguishable from the facts of the instant appeal. That a perusal of the contract and the pleadings in the HCCS 20 No. $173/2010$ , there was no evidence that this matter was a misnomer. The parties to the contract were Sabric Building and Decorating Contactors Ltd and Ministry of Defence. The parties to the contract are the same to the pleadings in the head suit vide (HCCS

No. $173/2010$ ) and this Court has no mandate to change the parties 25 to the suit since it has the consequence of changing/amending the contract.

Counsel argued that it is trite law that the burden of proof is on the Appellant to demonstrate that this was a matter of misnomer which it has failed to discharge. In support of this submission, counsel cited 30 Section 101 of the Evidence Act as well as the case of Sheikh Senyonga & 7 Others vs Sheikh Kakooza⁸

Counsel therefore submitted that the trial court and Court of Appeal arrived at a correct finding that since the Plaintiff in the High Court suit was a non-existent entity, the courts could not exercise the

^&lt;sup>8</sup> SCCA No. 9 of 1990.

discretion under Section 100 of the Civil Procedure Act to amend the 5 error.

Counsel prayed that this Court does not interfere with the above findings and consequently dismisses the appeal.

## Court's consideration

- The submissions of both parties call for determination of the 10 following issues: - Whether or not the Appellant's variation in name can be $(i)$ *regarded as a mere misnomer; and* - *Whether or not the misnomer is a curable defect which affected* $(ii)$ the appellant's locus to initiate a suit in the trial court.

According to **Black's Law Dictionary**⁹, a misnomer is defined as a mistake in name; the giving of an incorrect name to a person in a pleading, deed, or other instrument.

The basic function of the misnomer doctrine is to correct inconsequential deficiencies or technicalities in the names of parties. 20 The doctrine is reflected in **Section 100** of the **Civil Procedure Act** which provides that:

> The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.

In addressing the issue of whether or not the appellant company was incorrectly named in the plaint filed at the trial court and could take benefit of the above provision of law, the majority Justices of the Court of Appeal made a finding to the effect that, a civil suit in the names of the wrong Plaintiff or Defendant, and which does not exist legally, cannot be cured by way of amendment of the plaint or other

⁹ 2nd Edition.

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pleadings. Justice Cheborion, JA whose opinion formed part of the $5$ majority decision specifically reasoned that:

"In exercising the discretion [stipulated in Section 100 (supra)], court should take cognizance of the requirements of Order 1 rule 10 of the *Civil Procedure Rules ... amendment of a plaint under Order 1 rule 10 can only be made if the errors are minor matters of form, not affecting*

the substance of the identities of the parties to the suit ...

When a company does not exist legally, that is not mere form or misnomer but substance. This was not a case of misspelling or missing out of the words in the name but of non-existence. Where the

*amendment* is to replace a party that has no legal existence, the plaint 15 must be rejected because a plaint with only one party is no plaint at *all* ...

An argument was advanced that a reasonable man reading the documents would consider the error to be an honest mistake. The *guestion is not what the writer of the document intended but what a* 20 reasonable man reading the document would understand it to mean ... I agree with the trial Judge that a reasonable man cannot say that Sabric building and decorating contractors limited can be mistaken to *be Sabric International Limited.*" (My emphasis)

The above *ratio* was reached after a discussion of authorities such as 25 Trustees of Rubaga Miracle Centre v Mulangira Ssimbwa¹⁰; Freight Forwarders Association 2009¹¹; Banque Uganda Internationale de Commerce Petrograd v Goukassow¹²; Kilembe Mines Limited v Uganda Gold Mines Limited¹³. In all the aforementioned cases, the courts held that a non-existent company 30 cannot be mistaken for any other company.

The foregoing holding was drawn from the reasoning of Templeton J in The Fort Hall Bakery Supply Co. v Fredrick Muigai Wangoe (supra) decision. In that case, the Plaintiff brought an action for

^&lt;sup>10</sup> Miscellaneous Application No.576 of 2006.

^&lt;sup>11</sup> Constitutional Petition No.22 of 2009.

^&lt;sup>12</sup> [1923] 2 K. B.

^&lt;sup>13</sup> HCT 312 of 2012.

- recovery of a sum of money from the Defendant. It turned out that $\mathsf{S}$ the Plaintiff was not an incorporated or registered entity. Templeton J held that, the Plaintiff could not be recognized as having any legal *existence, and as such they were incapable of maintaining an action* and therefore the court could not allow the action to proceed. - I note that all the above authorities talk about the renowned principle 10 that an unregistered or non-existent entity is incapable of maintaining an action. I agree with the said principle. However, apart from the authorities of Trustees of Rubaga Miracle Centre v Mulangira Ssimbwa (supra) and Kilembe Mines Limited v Uganda - Gold Mines Limited (supra), the rest of the cited cases do not deal 15 with the issue of the applicability of Section 100 of the Civil Procedure Act to a misnomer.

Can it then be concluded from the above jurisprudence that the misnomer doctrine is limited in its application to cases where there is a misspell of the name of a legally existing party? What test should

20 guide courts in determining whether a case is a mere misnomer or not?

I am persuaded by the test propounded by Devlin L. J. in **Davies v.** Elsby Brothers Limited¹⁴. In that case, the plaintiff brought an action against his employers describing them in his Writ as "Elsby 25 Brothers (a firm). He later discovered that the partnership had been changed into a limited liability company, but that discovery was made too late for him to amend his Writ before the expiration of the relevant statute of limitations.

In determining whether the description of the company was a mere 30 misnomer which could be corrected or if it amounted to the addition of a new party, Devlin L. J. adumbrated a test which he regarded as of general application by which a Court can be guided in determining the question. He stated as follows:

"It is a general principle of English law, not merely applicable to cases

^&lt;sup>14</sup> [1960] 3 ALL ER 672.

of misnomer, that the intention which the framer of the document has $5$ in mind when he brings it into existence is not material ...

In English law as a general principle, the question is not what the *writer of the document intended or meant, but what a reasonable man* reading the document would understand it to mean; and that is the

- test which ought to be applied as a general rule in cases of misnomer 10 - which may embrace a number of other situations apart from a misnomer on a writ. for example, mistake as to identity in the making of a contract. - The test must be: How would a reasonable person receiving the *document take it? If, in all the circumstances of the case and looking* 15 at the document as a whole, he would say to himself: Of course it must mean me, but they have got my name wrong, then there is a case of *mere misnomer. If, on the other hand, he would say: 'I cannot tell from the document itself whether they mean me or not and I shall have to* - make enquiries" then it seems to me that one is getting beyond the 20 realm of misnomer. One of the factors which must operate on the mind of the recipient of a document and which operates in this case, is *whether there is or is not another entity to whom the description on the writ might refer*". (My emphasis) - The above reasonable reader test was applied by the Jamaican 25 Supreme Court of Appeal in the decision of Auburn Court Limited y Jamaica Citizens Bank Limited¹⁵. The brief facts of that case were that on November 20, 1985 a specially endorsed writ was filed in the Supreme Court by the respondent against four defendants including Auburn Limited, as a first defendant, claiming the sum of 30 \$4,123.723.866.74 as well as interest. On December 11, 1985 and on January 15, 1986, judgment was entered against all four defendants in default of filing a defence. Subsequently, on September 26 1967, the Master entered a default judgment ordering that the writ of Summons be amended by deleting the name "Auburn Limited" 35 and substitute it with "Auburn Court Limited". The said decision was challenged by the appellant on the ground that the Writ was issued

^&lt;sup>15</sup> Supreme Court Civil Appeal No. 69/90.

against a non-existent entity and was therefore null and void $5$ notwithstanding purported service thereof upon the non-existent entity and the entry of appearance on behalf of the non-existent entity. On the other hand, it was argued for the respondent that the Writ was issued against an existing legal entity but due to inadvertence, it was mis-named. 10

In determining the issue whether or not the description of the first defendant on the writ as "Auburn Limited" [instead of Auburn Court Limited] could be regarded as a mere misnomer, the Court applied the reasonable reader test and *inter alia* held as follows:

"at the date of issue of the writ, ... there was no such entity as fitted 15 the description of Auburn Limited at that time ...

Furthermore, the third defendant must have been well aware of the *applicant's indebtedness to the plaintiff* ...

Significantly, too, appearance was entered on behalf of all the defendants named in the plaintiff's writ.

*The present case is one of mere misdescription or misnomer which* does not invalidate the writ."

Applying the above test to the present matter, the question to be answered is: whether a reasonable reader in the position of the Respondent would have doubt as to the appellant's existence and the claims it lodged in the trial Court.

There is overwhelming evidence on record that Sabric International Limited was well known to the Respondent. From the commencement of the contractual relationship, the documents on record (the award

- of the contract marked annexure "E") shows that the Respondent at 30 all material times dealt with Sabric International Limited. Several other documents as pointed out in the Appellant's submissions are also on record showing that there were dealings between the Respondent and the Appellant Company. - I note that the confusion of the entity arose from communication by 35 the Appellant on its letterhead which bore the name Sabric Building - and Decorating Contractors Limited. An example of such a document $5$ is a letter marked annexure "D", addressed to The Commander, Engineering Brigade-UPDF, dated 2 June 2008 and titled Progress Report Rehabilitation of A/BDE Gunshed Masaka Barracks. Paragraph 4 of the said letter states that: "The management of Sabric *International Limited wishes to extend its warm gratitude and support* - 10 that was given to us during the rehabilitation period. We assure you continuous quality technical services and loyalty." The letter was signed off by Edward Luyinda (Managing Director) for Sabric International Limited. - Another document is a letter marked annexure "M". It appears on a 15 letter head bearing the name Sabric Building and Decorating Contractors. It is addressed to a Consultancy firm known as ICM Consultants requesting for an independent evaluation of the Bill of Quantities quoted for the construction works. It is signed off by Edward Luyinda for Sabric International Limited. 20

I opine that although the letterhead bearing the name Sabric Building and Decorating Contractors was used in the appellant's communications to the Respondent, the same was always signed off with the name-Sabric International Limited. The documents bore both names. In such circumstances, it was clear that the Respondent was at all material times aware of the name/phrase-Sabric Building and Decorating Contractors had a connection with Sabric International Limited which is a legally registered entity.

It is therefore no surprise that the Respondent went ahead and defended the suit brought by the appellant in the wrong name and 30 actually lodged a counter-claim against it. If the argument made by the Respondent was to be upheld, then the counter-claim would also be rendered futile.

It is also noted that the Respondent had made a partial payment to the appellant for the executed work. That payment is reflected on a 35 Tropical bank debit receipt marked annexure "H" dated 24 Jan 2009 stating as follows: "we have today debited your account with the sum

#### (461,900,000.00) being part payment of 100 PCT cash margin on LG $\mathsf{S}$ 02/196/08 BO Sabric International Limited."

Furthermore, I note that there is no assertion by the Respondent that the name Sabric Building and Decorating Contractors brought such confusion as to cause them not to identify or know the entity it had contracted to carry out the renovation works.

From the above analysis, I opine that institution of the suit by the appellant in a wrong name did not change the fact that the Respondent had taken benefit of the appellant's expertise through executed works but later uses the mishap to decline to pay the appellant its full consideration on the premise that it brought a claim for its money in the names of a non-existent party. In the interest of

- Justice, the Respondents cannot be allowed to take benefit from the contract and later on turn around to deny payment for the work done on the ground that the claimant is non-existent. This would fall foul - of the doctrine of approbating and reprobating which is to the effect 20 that a person cannot approve of or take benefit from an action and later disapprove of it.¹⁶

Arising from the above analysis, I hold that a reasonable reader can clearly see that Sabric Building and Decorating Contractors Limited

- was a misnomer for Sabric International Limited; and that misnomer 25 is curable by Section 100 of the Civil Procedure Act. The misnomer was a technicality and **Article 126 (2) (e)** of the **Constitution** enjoins this Court to administer substantive justice without undue regard to technicalities. - In the result, I would allow the appeal and set aside the majority 30 judgment of the Court of Appeal. Consequently, I would order that: - 1. The plaint instituted by the appellant in the names of Sabric Building and Decorating Contractors Limited be reinstated and amended to reflect the correct entity-Sabric International Limited.

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^&lt;sup>16</sup> Osborn's Concise Law Dictionary, 11^th edition, page 35.

2. The matter be remitted to the High Court to be determined on the merits.

3. The Costs of this appeal as well as those in the Courts below be granted to the Appellant.

Dated at Kampala this... 13^th day of.................................... $... 2023.$

> in isalemure. PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA JUSTICE OF THE SUPREME COURT.

$5$

## THE REPUBLIC OF UGANDA

#### IN THE SUPREME COURT OF UGANDA AT KAMPALA

CORAM: OWINY-DOLLO, CJ; MWONDHA, TIBATEMwA. EKIRIKUBINZA, TUHAISE & CHIBITA, JJSC

#### CIVIL APPEAL NO. 30 OF 2O2O

SABRIC INTERNATIONAL LIMITED ..... APPELLANT VERSUS

ATTORNEY GENERAL RESPONDENT

(Arising from the deciston of the Court of Appeal in Civil Appeal No. 2l of 201 5)

## JUDGMENT oF owINY. DoLLo; cJ

I have had the benefit of reading in draft the judgment of my learned sister Tibatemwa-Ekirikubinza, JSC. I concur with the reasoning, conclusions, and orders proposed therein.

Since Mwondha, Tuhaise, Chibita, JJSC, also agree, orders are hereby issued in the terms proposed by Tibatemwa-Ekirikubinza JSC in her judgment. is

Dated, and signed at Kampala this t3 day of ²⁰²³

Alfonse C. Owirry r Dollo r ^r

Chief Justice

#### THE REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGANDA TA KAMPALA

(Owiny-Dollo, CJ, Mwondha, Tibatemwa-Ekirikubinza, Tuhaise, Chibita, JJ. SC)

#### CIVIL APPEAL NO. 30 OF 2020

# SABRIC INTERNATIONAL LIMITED.................................... VERSUS

ATTORNEY GENERAL....................................

(Appeal arising from the judgment and orders of the Court of Appeal at Kampala before Musoke, Cheborion Barishaki, JJA and Kasule, Ag. JA, dated 31^st August 2020)

#### **JUDGMENT OF MWONDAH, JSC**

I have had the benefit of reading in draft the judgment of my learned sister Prof. Tibatemwa-Ekirikubinza, JSC. I concur with the reasoning, decision and the proposed orders.

mmendese

**Mwondha Justice of the Supreme Court.**

13^th - October 2023

## THE REPUBLIC OF UGANDA

t

## IN THE SUPREME COURT OF UGANDAAT KAMPAI. A

(Coram: Owiny-Dollo,CJ, Mwondha, Tibatemwa-Ekirikubinza, Tuhaise, Chibita,,l. S. C)

## CIVIL APPEAL NO. 30 OF 2O2O

## BETWEEN

APPELI^ANT SARBRIC INTERNATIONAL LTD

## AND

## ATTORNETGENERAL RESPONDENT

[Appeal from the decision ofthe Court ofAppeal ofUganda delivered by Hon. Lady fustice Elizabeth Musoke, JA, Hon. Mr. fustice Cheborion Barishaki, fA and Hon. Mr. fustice Remmy Kasule, JA delivered on 31.tAugust,2020 in Civil Appeat No. 21 of

201s1

# IUDGMEM OF PERCY NIGHT TUHAISE. ISC.

I have had the benefit of reading the f udgment of Hon. Lady fustice Prof. Tibatemwa-Ekirikubinza, JSC.

I agree with the decision, and the orders therein.

Date at Kampala, this l3tu" day of e ^o 2023.

Ywtt Percy Night Tuhaise

# lusrrcE oFTHE SUPREME COURT

### THE REPURLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA

--

(CORAM: Owinyi-Dollo, C. J ; Mwondha, Tihotemwa-Ekirikubinza, Tuhaise, Chibito; JJSA

### CIVIL APPEAL N(). 30 OF 2O2O

#### tlEt'\\ 1.11\

### SABRIC INTERNATIONA L LI M ITED: : : : : : : : : : : : : :: : : : : : : : : I :APPELLANT

#### AND

ATTORNEY GENERAL:::::::::::::::::::::::::::::::::::::::::::RESPONDENT

lAppeal lrom the decision of lhe Court of Appeal at Kompola (Musoke, Barishoki, Kasule; JJA). Dated 3l't August,2020 in Civil Appeol No.2I of 20tsl

# JUDGMENT OF MIKE J. CHIBITA, JSC.

I have had the benefit of reading in draft, the Judgment of my learned sister Hon. Justice. Prof. Lillian Tibatemwa-Ekirikubinza, JSC. I agree with her decision that this Appeal should succeed for the reasons she has given in her Judgment. I also agree with the Orders she has proposed.

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Dated at Kampata ,t i" ..lt.3.llv .r gcloUar ...2023

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MIKE J. CHIBITA JUSTICE OF THE SUPREME COURT