Court name
Commercial Court of Uganda
Judgment date
30 October 2013

Muse-Af Enterprises Co. Ltd v Billen General Trading Ltd (Miscellaneous Application-2013/754) [2013] UGCommC 180 (30 October 2013);

Cite this case
[2013] UGCommC 180

THE REPUBLIC OF UGANDA

 

IN THE HIGH COURT OF UGANDA AT KAMPALA

 

(COMMERCIAL DIVISION)

 

MISC. APPLICATION NO. 754 OF 2013

 

(Arising from Civil Suit No. 102 of 2013)

 

MUSE-AF ENTERPRISES CO. LIMITED:::::::::::::::::::::::::::::::::::::APPLICANT

 

VERSUS

 

BILLEN GENERAL TRADING LTD:::::::::::::::::::::::::::::::::::::::::RESPONDENT

 

BEFORE HON. LADY JUSTICE HELLEN OBURA

 

RULING

 

The applicant brought this application under the provisions of Order 6 rules 19 and 31 of the Civil Procedure Rules (CPR) and Section 98 of the Civil Procedure Act (CPA) seeking for leave to amend the plaint in Civil Suit No. 102 of 2013 and that costs of the application be provided.

 

The grounds of the application are contained in the affidavit deposed by Ms. Diana Kasabiti, a practicing advocate with M/s Birungyi, Barata & Associates, the applicant’s lawyers. The first ground is that the amendment is necessary to enable court determine the real issues in controversy between the parties. Secondly, that it is in the interest of justice that the amendment is allowed.

 

In opposition to the application, the respondent filed an affidavit deposed by Baluku Ronald Masamba, a practicing advocate with M/s Tareemwa and Co. Advocates. The first ground of the respondent’s opposition is that the application to amend the pleadings is misconceived, frivolous and lacks merits as the alleged fact is not intended to determine the real issues before this honorable court. The other ground is that the amendment seeks to introduce an agreement which the respondent is not aware of and was not party to. In addition to that the respondent avers that the application is not based on correcting errors or defects as required by the law but merely crafted to defeat the respondent’s defence and interests. Lastly, that it is in the interest of justice that the application for an amendment be refused as it is only intended to delay the prosecution of the suit.

 

At the hearing of this application, Mr. Martin Mbanza held brief for Mr. Birungyi Cephas for the applicant while Mr. Innocent Tareemwa and Mr. John Barenzi represented the respondent. Both parties filed written submissions in the matter upon which this ruling is based.  

 

In his submissions, counsel for the applicant relied on the decision in Kahwa & Another vs UTC [1978] HCB 318 as to the object of pleadings. Counsel for the applicant then argued that the applicant seeks to amend paragraphs 4 and 6 of the plaint to include omissions that were left out by former counsel but which are curable by amendment under O. 6 rule 19 of the CPR.

 

Counsel for the applicant also referred to paragraphs 5, 6 and 7 of the affidavit in support and submitted that the information the applicant seeks to add in the plaint is necessary for the applicant to set out all factual aspects of the case to enable this court fully determine the real issues in controversy between the parties and avoid multiplicity of suits.

 

He cited Mulla, The Code of Civil Procedure, 17th Edition Volume 2 at pages 333, 334 and 335 for the position that as a general rule, leave to amend will be granted so as to enable the real questions in issue between the parties to be raised on the pleadings, where the amendment will occasion no injury to the opposite party, except such as may be sufficiently compensated for by costs or other terms to be imposed by the order. He submitted that leave to amend must always be granted unless the party applying was acting mala fide and where it is not necessary for determining the real question in controversy between the parties. The application to amend must be made bona fide and in good faith.  Counsel for the applicant further cited the case of Gaso Transport Services (Bus) Ltd vs. Obene [1990-1994] EA 88 where Tsekooko, JSC reiterated the above principles which were also followed in the case of Motorcare (U) Ltd vs Attorney General CS 638 OF 2005.

 

Counsel for the applicant submitted that the applicant’s claim against the respondent is for passing off and infringement of the plaintiff’s trademark and now the applicant seeks to amend paragraph 4 of its plaint to expound the same by clearly indicating how the said claim arose. According to counsel for the applicant, this is in tandem with the above principles in that the amendment is necessary to enable court determine the real issues in controversy between the parties, it avoids multiplicity of proceedings and it is bona fide.

 

In conclusion, counsel for the applicant referred to paragraph 9 of the affidavit in support and submitted that it is in the interest of justice that the amendment is allowed since Odgers on Pleadings and Practice 20th Edition at page 70 states that where the amendment is necessary to enable justice to be done between the parties, it will be allowed on terms even at a late stage. The contention of the applicant’s counsel is that the proposed amendment is not in any way prejudicial to the respondent since no new cause of action is being introduced by the applicant and the amendment is bona fide and as such it is in the interest of justice that the amendment is allowed.

 

On the other hand, counsel for the respondent submitted that the issue to be determined by this court is whether the introduction of an agreement that the respondent was not party to and is subject of contention in Civil Suit No. 271 of 2013 shall determine the real issue in controversy in the above suit. He argued that in effect the applicant seeks to create a fresh cause of action and introduce a new party to the proceedings before the court. He pointed out that Order 6 rule 19 of the CPR strictly enjoins the court to grant an amendment only where it is necessary to determine the real questions between the parties.

 

He submitted that whereas the applicant correctly cited Gaso Transport Services (Bus) Ltd vs. Obene (supra), Mulla, The Code of Civil Procedure (supra) and Odgers on Pleadings and Practice (supra), if the application be made mala fide or if the proposed amendment will cause undue delay, or will in any way unfairly prejudice the other party or is irrelevant or useless, or would raise merely a technical point, leave will be refused. He cited the case of Muloowoza & Brothers vs N. Shah & Co. Ltd SCCA No. 26 of 2010 where Tumwesigye JSC noted the purpose of amendments and need to administer justice without undue regard to technicalities in accordance with Article 126(2) (e) of the Constitution.

 

Relying on the observation of this court in Bright Chicks Uganda Ltd vs Dan Bahingire (supra), counsel for the respondent referred to paragraphs 5 of the affidavit in support and paragraph 4(j) of the intended amended plaint and submitted that the alleged agreement which the applicant wishes to introduce is a matter of evidence which can be exhaustively dealt with in Civil Suit No. 271 of 2013 between the applicant and Linyi Huatai Manufacturers Co. Ltd as the respondent was neither aware of it nor a party to it.

 

It was the submission of the respondent’s counsel that the application for amendment of pleadings was made mala fide with a view of defeating the respondent’s defence and granting it is prejudicial to the respondent which works as an injustice to it which cannot be compensated by costs.

 

The respondent’s counsel further submitted that refusing to grant this application would not in any way give rise to multiplicity of proceedings as the court  can determine the issue of ownership of the PANASUPER trademark between the applicant and the manufacturer in Civil Suit No. 271 of 2013. He concluded that the interest of natural, equitable and substantive justice will best be served with the dismissal of the application.

 

Counsel for the applicant made submissions in rejoinder in which he reiterated his earlier submissions and added that the application is bona fide and is not prejudicial to the respondent’s defence. It was also the contention of the applicant’s counsel that the respondent’s submission that this application was made mala fide with intent to defeat the respondent’s defence is not proved by either facts or material evidence since it is an established law that whether or not a party is acting mala fide is a question of fact which can only be established by evidence. See: Transami (U) Ltd vs Transocean (U) Ltd CS 145 of 1987. According to the applicant’s counsel the respondent had failed to demonstrate the manner in which it would be prejudiced by grant of this application.

 

I have given due consideration to the application and the supporting affidavit as well as the affidavit in reply. I have also carefully read the submissions of both counsel. The issue for determination by this court is whether leave should be granted to the applicant to amend its plaint. Order 6 rule 19 of the CPR under which this application was brought gives this court the discretion to allow alterations or amendment of pleadings in such manner, at any stage of the proceedings and on such terms as may be just and as may be necessary for the purpose of determining the real questions in controversy between the parties.

 

The applicant’s counsel correctly cited the principles of law which guide court in exercise of judicial discretion while considering amendments of pleadings. These  principles were summarized by Tsekooko, JSC  in Gaso Transport Services (Bus) Ltd vs Obene (supra) where he stated that the four principles that appear to be recognized as governing the exercise of discretion in allowing amendments are:-

 

  1. “The amendment should not work injustice to the other side.

An injury which can be compensated by an award of costs is not treated as an injustice.      

  1. Multiplicity of proceedings should be avoided as far as possible and all amendments which avoid such multiplicity should be allowed.
  2. An application which is made mala fide should not be granted.
  3. No amendment should be allowed where it is expressly or impliedly prohibited by any law (for example limitation actions)”.

 

The test that the instant application must pass is whether the proposed amendment introduces a distinct new cause of action instead of the original or whether and in what way it would prejudice the rights of the respondent if it was allowed as per Tumwesigye, JSC in Mulowooza & Brothers vs N. Shah Ltd (supra).

 

The intended amendment to the plaint states as follows:

“4 (b) That on 11th August 2006 the plaintiff entered into an agreement with Linyi Huatai Battery Co. Ltd under which the plaintiff having been recognized as the registered owner of the PANASUPER trademark in Uganda, authorized Linyi Huatati Battery Co Ltd to use the plaintiff’s registered trademark on its products. A copy of the said agreement is hereto attached and marked ‘C’.

 

(c)  The plaintiff has at all material times after the said registration been marketing and selling batteries under the name and mark PANASUPER packed in black, green and red highlights get up in Uganda. Copies of the registered PANASUPER batteries trademark and name are attached hereto and marked “A1 & A2”.

 

In its Written Statement of Defence filed in this court on 24th April 2013, under paragraph 9 the defendant avers as follows;

 

“9. The Defendant shall adduce evidence at the trial to prove that the proprietor and registered owner of “PANASUPER” trademark is M/s LINYI HUATAI BATTERY MANUFACTURERS CO. LTD with exclusive right to the use of the trademark and not the plaintiff as alleged”.

 

From a reading of the pleadings, there is a clear dispute between the parties as to the ownership of the trademark PANASUPER. While the plaintiff avers in its plaint that it has been the lawful owner and registered user of the PANASUPER trademark, the defendant on the other hand claims that it is M/S LINYI HUATAI BATTERY MANUFACTURERS CO. LTD with exclusive right to use of the PANASUPER trademark as its proprietor. To my mind this raises an issue that would require sufficient information to resolve the dispute between the parties. I therefore find that the information the plaintiff seeks to add in the plaint by the intended amendment is necessary for this court to fully determine the real issues in controversy between the parties and avoid multiplicity of suits.

 

It was contended for the respondent that the agreement which the applicant wishes to introduce is a matter of evidence which can be exhaustively dealt with in Civil Suit No. 271 of 2013 between the applicant and Linyi Huatai Manufacturers Co. Ltd. I do not agree with this position because the issue of ownership of the trademark has been raised in the suit from which this application arises and this court has to resolve it by looking at the facts pleaded and the evidence that will be adduced to prove them. It is now a settled principle of law that a party is not allowed to succeed in a case not pleaded. It therefore follows that if the applicant is to succeed in its case of the alleged ownership of the trademark, it has to plead the ownership and prove it in evidence. This principle was clearly stated in Interfreight Forwarders (U) Ltd v East African Development Bank SCCA No. 33 of 1993 Oder, JSC (RIP) stated:-

 

“A party is expected and is bound to prove his case as alleged by him and as covered in the issues framed.  He will not be allowed to succeed on a case not set up by him and be allowed at the trial to change his case or set up a case inconsistent with what is alleged in his pleadings except by way of amendment of pleadings”.

 

On the basis of this principle, it is my considered view that even if the agreement may be a matter of evidence, the intended amendments are necessary to provide a basis for introducing the same at the trial. The argument that the agreement is the subject of another suit does not in my view preclude the applicant from adducing it in the suit whose plaint is sought to be amended by this application especially when it is of relevance in determining the real issues between the parties as already alluded to above.

 

The respondent’s argument that the applicant seeks to bring fresh cause of action and new party to the proceedings by way of amendment lacks merit. This is because the intended amendments only expound the cause of action of passing off and infringing of the plaintiff/applicant’s trademark of PANASUPER by showing the alleged ownership. Tumwesigye, JSC in Mulowooza & Brothers vs N. Shah Ltd (supra) quoted Sir Kenneth O'Connor in the case of Eastern Bakery v. Castelino [1958] EA 461 who states as follows:-

 

“Amendments to pleadings sought before the hearing should be freely allowed, if they can be made without injustice to the other side and ... there is no injustice if the other side can be compensated by costs ... 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 amendments sought do not substitute one distinct cause of action for another. Neither does it change the subject matter of the suit nor change the action into one of a substantially different character. The respondent has not shown how the fresh cause of action, if any, would change the subject matter of the suit for the amendment to be denied.

 

The respondent also did not demonstrate the manner in which it would be prejudicial if this application is granted. For that reason, I do not see any prejudice that would be occasioned to the respondent if the amendments sought are allowed. In contrast, it would enable this court to effectually and completely determine all questions involved in the suit so as to avoid multiplicity of proceedings.

 

In the circumstances, I do find that the amendments sought by the applicant are permissible under the law governing amendment of pleadings. In the result, the application is allowed and leave is granted to the applicant to amend its plaint in Civil Suit No. 102 of 2013 as proposed in the intended amended plaint. The amended plaint shall be filed within seven days from the date of this ruling. The costs of this application are awarded to the respondent.

 

I so order.

 

 

Dated this 30th day of October 2013.

 

 

 

Hellen Obura

JUDGE

 

Ruling delivered in chambers at 3.00 pm in the presence of Mr. Martin Mbanza who was holding brief for Mr. Cephas Birungyi for the applicant and Mr. Innocent Tareemwa appearing together with Mr. John Barenzi for the respondent. The Managing Director and the Manager of the respondent company were also present.

 

JUDGE

30/10/13