Court name
Commercial Court of Uganda
Judgment date
1 October 2014

Tatiana Ermoshkina v Tusker Mattresses Ltd & 3 Ors (Miscellaneous Application-2014/234) [2014] UGCommC 204 (01 October 2014);

Cite this case
[2014] UGCommC 204

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION NO. 234 OF 2014

(Arising from High Court Civil Suit No. 431 of 2010)

DR.TATIANA ERMOSHKINA:::::::::::::::::::::::::::::::::::::APPLICANT

VERSUS

TUSKER MATTRESSES LTD & 3 OTHERS:::::::::::RESPONDENTS

 

BEFORE THE HON. MR. JUSTICE HENRY PETER ADONYO

RULING

This is an application brought under Order 6 Rule 19 and 31 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act for an Order that leave be granted to amend the plant in H. C. C.S. No. 421 of 2010. It is supported by the affidavit of Dr. Tatiana Ermoshkina, the Plaintiff/ Applicant.

The main ground for the application is that since the filling of the suit, the Applicant has taken advice from her legal counsel to drop and include certain prayers in the plaint as provided in paragraph 3 of the affidavit in support and Annexture “TE1” to the affidavit which shows that the Applicant is seeking to drop the prayers contained in paragraphs 7(d) and (e) of the original plaint (pages 5-6 of the plaint). The Applicant is also seeking a declaration and an order for an account in respect of the 3rd Defendant property wrongfully, fraudulently and or unlawfully sold under the agreements dated 31st February 2010 and 13th July, 2010 and one other undated agreement. The said additional prayers are set out in paragraphs (a) and (b) at pages 6 of the draft amended plaint.

This application calls for this Honourable Court to exercise its discretion to allow the amendments sought based on the authority of Gaso Transport Services (Bus) Ltd v Obene (1990-1994) EA 88 where the Supreme Court summarized the principles that should guide the exercise of discretion in allowing amendments which are that;

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

I have carefully studied the grounds which are the basis of this Application and also taken into account the Affidavit in support. Based on the averments and the attachments therein, I am convinced  that this Application not only satisfies the requirements set out in the above mentioned Supreme Court decision in that by allowing the amendment sought dropping certain prayers certainly do not in any way do any injustice to the Respondents as the prayers sought to be added does not occasion any injustice or prejudice either party as there is already an averment in paragraph 6 of the original plaint to the effect that 1st, 2nd and 4th Defendants fraudulently expropriated the 3rd Defendant’s property under the agreements dated 31st February 2010 and 13th July, 2010, and the undated agreement with the resultant effect that the prayers sought to be introduced are merely seeking appropriate declarations based on the said averments but that the purpose of this Application is to enable clarity of the dispute between the parties to be made so that this dispute can eventually be resolved without any further delay.

 

 

Order

In view of the above findings, therefore, I am of the opinion that this is a proper case for granting leave to amend the plaint so that this matter may proceed to its final conclusion based  on clarity of the claims and will therefore avoid multiplicity of suits.

I do therefore exercise the discretion conferred on to this Honourable Court and allow this application with costs of this Application to be in the cause.

 

 

Henry Peter Adonyo

Judge

1st October, 2014