[2025] UGCommC 153

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISCELLANEOUS APPLICATION NO. 404 OF 2025 (ARISING FROM CIVIL SUIT NO. 1357 OF 2024)**

10 **SALAAM BANK LIMITED :::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

- **1. KARUNGI SHEILA KAJUNGU** - **2. KAJUNGU RICHARD** - **3. WROK VALUATION CONSULTANTS LTD** - 15 **4. RACHEAL NASIRUMBI ::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

#### **BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA**

#### **RULING**

#### Introduction

This application was brought by way of Chamber Summons under **Section**

- 20 **33 (now Section 37) of the Judicature Act, Cap. 16** and **Order 6 rules 19 and 31 of the Civil Procedure Rules, SI 71-1**, seeking orders that: - 1. The Applicant be granted leave to amend the plaint to include the survey and valuation report by Wrok Valuation Consultants Ltd concerning the property comprised in **LRV KCCA 172 Folio 7, Plots** - 25 **No. 15A, 1A-7A, 9A-11A and 3A-5A, Unit No. 484, Condominium Plan No. KCCA000022, Mackay Road, Kampala Central**. - 2. Costs of the application be in the cause.

Background

- 5 The background of this application is contained in the affidavit in support deponed by **Ms. Ednah Ruth Ninsiima** the Applicant's Legal Manager, and is summarized below: - 1. That the Applicant instituted *Civil Suit No. 1357 of 2024* against the Defendants seeking remedies for breach of contract, fraudulent 10 misrepresentation and professional negligence. - 2. That the Applicant's claims are based, in part, on a survey and valuation report prepared by Wrok Valuation Consultants Ltd regarding the property comprised in **LRV KCCA 172 Folio 7, Plots No. 15A, 1A-7A, 9A-11A and 3A-5A, Unit No. 484, Condominium** 15 **Plan No. KCCA000022, Mackay Road, Kampala Central**. - 3. That the Applicant inadvertently omitted to attach the said report to the plaint filed in this matter. - 4. That the omission was not deliberate but was caused by the Applicant's inability to locate the said report at the time of filing the 20 suit and the same has since been recovered. - 5. That the amendment is necessary to enable Court effectively and conclusively adjudicate on the issues in controversy as well as avoid multiplicity of proceedings.

In reply, the 1st and 2nd Respondents, through an affidavit deponed by **Ms.**

25 **Karungi Sheila Kajungu,** 1st Respondent, opposed the application contending that:

- 1. The document sought to be added was at all times in the possession of the Applicant before the filing of the case. - 2. The Respondents will be prejudiced by the continued delay of the 30 hearing of the main suit at the instance of the Applicant.

5 3. If the Court is inclined to allow the application, costs should be awarded to the Respondents.

The 3rd and 4th Respondents also opposed the application, through an affidavit deponed by **Ms. Racheal Nasirumbi,** the 4th Respondent and Director of the 3rd Respondent, contending that:

- 10 1. The document sought to be adduced has at all material times been in the possession of the Applicant. - 2. The purported amendment would be prejudicial to them because it seeks to patch up the gaps in the Plaintiff's case in light of their defence. - 15 3. The document being sought to be adduced raises issues regarding its authenticity.

In rejoinder, **Ms. Ednah Ruth Ninsiima,** the Applicant's Legal Manager, reiterated her previous averments and added that:

- 1. The omission to attach the valuation report to the plaint was purely - 20 inadvertent and neither was it deliberate nor intended to mislead Court. - 2. The application has been brought in utmost good faith and in furtherance of the interests of justice.

#### Representation

25 The Applicant was represented by **M/s Celer Advocates** while **M/s Falcon Associated Advocates** represented the 1st and 2nd Respondents and the 3rd and 4th Respondents were represented by **M/s Able Advocates**.

All the parties were directed to file their written submissions but only the Applicant, 3rd and 4th Respondents complied with Court's directives and 30 their submissions have been considered by Court.

#### 5 Issues for Determination

Following **Order 15 rule 5(1) of the Civil Procedure Rules** and the case of *Oriental Insurance Brokers Ltd Vs Transocean (U) Limited SCCA No. 55 of 1995*, this Court rephrased the issues to read as follows:

- 1. Whether the Applicant should be granted leave to amend the plaint 10 in *Civil Suit No.1357 of 2024*? - 2. What remedies are available to the parties?

Issue No. 1: Whether the Applicant should be granted leave to amend the plaint in *Civil Suit No. 1357 of 2024*?

#### Applicant's submissions

- 15 Counsel for the Applicant first relied on **Order 6 rule 19 of the Civil Procedure Rules** and the principles that govern amendments as laid down in the case of *Gaso Transport Services (Bus) Ltd Vs Martin Adala Obene SCCA No. 4 of 1994*. - Counsel then submitted that the Applicant seeks to amend the plaint so 20 as to attach the inadvertently omitted survey and valuation report that was prepared by Wrok Valuation Consultants Ltd in respect of the property comprised in LRV KCCA 172 Folio 7, Plots No. 15A, 1A-7A, 9A-11A and 3A-5A, Unit No. 484, Condominium Plan No. KCCA000022, Mackay Road, Kampala Central. - 25 That the Applicant seeks to include a document that supports an already pleaded cause of action so as to provide Court with all the relevant material necessary for the proper adjudication of the dispute.

5 That the application was made in good faith at a pre-trial stage and the Respondents stand to suffer no prejudice that cannot be remedied by an award of costs.

In conclusion, Counsel for the Applicant prayed to Court to grant the application since the amendment is necessary for the just, expeditious and

10 conclusive resolution of the matters in issue and will avoid the need for multiplicity of suits.

## 3rd and 4th Respondents' submissions

Counsel for the 3rd and 4th Respondents also first relied on the law and principles that govern amendments as quoted by Counsel for the 15 Applicant.

Counsel then contended that this application will work as an injustice to the 3rd and 4th Respondents because they have been requesting for the same in vain and also that the one being adduced is incomplete since it has missing pages. Further, that the same is being adduced to cure the 20 deficiencies exposed by their defence.

That therefore, the document being adduced raises questions of authenticity and is an afterthought. In conclusion, Counsel for the 3rd and 4th Respondents prayed to Court to dismiss the application with costs for being delayed and prejudicial.

25 Analysis and Determination

## **Order 6 rule 19 of the Civil Procedure Rules** stipulates that:

*"The Court may, at any stage of the proceedings, allow either party to alter or amend his or her pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be*

5 *necessary for the purpose of determining the real questions in controversy between the parties."*

The above provision explicitly vests this Court with discretionary power to allow the amendment of pleadings at any stage of the proceedings to determine the real issues in controversy between the parties. To guide the 10 Court in the exercise of the above discretion, it was held in the case of *Eastern Bakery Vs Castelino [1958] EA 461* that the powers of amendment should not be used to substitute one cause of action for

another or change an action into another of a substantially different character.

- 15 The principles that govern the amendment of pleadings were laid out in the case of *Gaso Transport Services (Bus) Ltd Vs Martin Adala Obene (supra)* and these include: - i) The amendment should not work as an injustice on the other side. An injury that can be compensated by way of costs is not treated 20 as an injustice. - ii) Multiplicity of proceedings should be avoided so far as possible and all amendments, which avoid such multiplicity, should be allowed. - iii) An application which is made malafide should not be granted. - 25 iv) No amendment should be allowed where it is expressly, or impliedly prohibited by any law (limitation of action).

In the instant case, the Applicant seeks to amend the plaint in *Civil Suit No. 1357 of 2024* so as to attach a survey and valuation report that was prepared by Wrok Valuation Consultants Ltd, the 3rd Respondent in 30 respect of property comprised in **LRV KCCA 172 Folio 7, Plots No. 15A,**

# 5 **1A-7A, 9A-11A and 3A-5A, Unit No. 484, Condominium Plan No. KCCA000022, Mackay Road, Kampala Central**.

Regarding whether the amendment will work as an injustice on the other party; the 1st and 2nd Respondents contend that the Respondents will be prejudiced due to the continued delay to hear the main suit while the 3rd

10 and 4th Respondents contend that the amendment seeks to patch up the gaps in the Applicant's case in light of their defence.

The 3rd and 4th Respondent averred that the application is brought to cure the deficiencies exposed by their defence.

I have carefully perused all the pleadings on the Court record and 15 according to the plaint in *Civil Suit No. 1357 of 2024*, the Applicant contends that the 3rd and 4th Respondents were fraudulent, negligent and misrepresented the market and forced value of the suit property at the time of valuation as per their report, being sought to be attached to the plaint. Further, the Applicant contended in the plaint that the 20 Respondents knowingly and intentionally overstated the property's value over and above the known market bracket.

In their joint written statement of defence, the 3rd and 4th Respondents dispute the said allegations contending that they exercised and applied the required standards during the valuation. This, in my view, makes the 25 report a necessary document for Court to ascertain whether the 3rd and 4th Respondents were negligent, fraudulent and misrepresented the market and forced value of the suit property.

The issue regarding the authenticity of the report is reserved for determination at the time of admission of the evidence on the Court record. 30 Regarding the 1st and 2nd Respondents' contention that the Respondents

- 5 will be prejudiced due to the continued delay to hear the main suit; Counsel for the Applicant submitted that the Respondents stand to suffer no prejudice that cannot be remedied by an award of costs. Given the nature of the application and the prayers, I agree that the Respondents' prejudice can be atoned for in costs. - 10 Upon further analysis of the application at hand, this Court is convinced that the application is not made malafide, the amendment is not prohibited by any law and its grant will eliminate any multiplicity of suits.

In the premises, in the interest of justice and in accordance with **Section 37 of the Judicature Act** and **Section 98 of the Civil Procedure Act**, 15 the Applicant is hereby granted leave to amend its plaint so as to include the survey and valuation report by Wrok Valuation Consultants Ltd concerning the property comprised in **LRV KCCA 172 Folio 7, Plots No. 15A, 1A-7A, 9A-11A and 3A-5A, Unit No. 484, Condominium Plan No. KCCA000022, Mackay Road, Kampala Central**.

20 Issue No. 1 is answered in the affirmative.

#### Issue No. 2: What remedies are available to the parties?

Having resolved issue No. 1 above in the affirmative, the following orders are hereby issued:

1. The Applicant is hereby granted leave to amend its plaint in *Civil* 25 *Suit No. 1357 of 2024* so as to include the survey and valuation report by Wrok Valuation Consultants Ltd concerning the property comprised in **LRV KCCA 172 Folio 7, Plots No. 15A, 1A-7A, 9A-11A and 3A-5A, Unit No. 484, Condominium Plan No. KCCA000022, Mackay Road, Kampala Central**.

- 5 2. The Applicant shall file and serve the amended plaint to all the Defendants in *Civil Suit No. 1357 of 2024* within fifteen (15) days from the date of this Ruling. - 3. Costs of this application are awarded to the Respondents.

I so order.

10 Dated, signed and delivered electronically via ECCMIS this **10th** day of **June**, **2025.**

Patience T. E. Rubagumya **JUDGE** 10/06/2025 15 6:40am