Court name
Commercial Court of Uganda
Case number
Miscellaneous Application 178 of 2014
Judgment date
16 May 2014

Kwik Build Contractors Ltd v Kyadok Hardware Ltd (Miscellaneous Application 178 of 2014) [2014] UGCommC 56 (16 May 2014);

Cite this case
[2014] UGCommC 56

 

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

 AT KAMPALA

(COMMERCIAL DIVISION)

 

MISC. APPLICATION NO. 178 OF 2014

(ARISING FROM CIVIL SUIT NO 40 OF 2014)

 

KWIK BUILD CONTRACTORS LTD …………………………………….….. APPLICANT

 

VERSUS

 

KYADOK HARDWARE LTD ………………………………………………RESPONDENT

 

 

 

BEFORE: LADY JUSTICE FLAVIA SENOGA ANGLIN

RULING

 

 

The background to this application is that the Respondent is the Plaintiff in Civil Suit 40/2014, and the Applicant is the Defendant.

The Plaintiff/Respondent sued the Applicant/Defendant seeking to recover shs. 175,000,000/- interest, general damages and costs of the suit.

 

In the suit, the Plaintiff/Respondent claims to have supplied building materials to the Applicant/Defendant to carry out construction works at the UN site at Entebbe Airport.

 

The materials supplied and delivered to the Applicant are said to have been worth shs. 375,000,000/-.  It is the Respondent/Plaintiff’s contention that the Applicant only paid shs. 200,000,000/= leaving an outstanding balance of shs. 175,000,000/-, which remains un-paid to date; thereby causing loss and inconvenience to the Respondent.  Hence the suit.  The Plaint was filed on 24.02.14 and defence was filed 05.02.14 together with a counter claim.

 

The Applicant/Defendant denied the Respondent/Plaintiff’s claim, stating that the plaint disclosed no cause of action and was an abuse of court process.

In the alternative, the Applicant/Defendant admitted that Respondent/Plaintiff supplied the building materials worth 375,000,000/- on various dates in 2013, but that the Applicant/ Defendant made payments worth 403,497,400/-. Claiming that payment made was over and above what the Respondent / Plaintiff claims.  The Applicant denied causing any inconvenience or loss.

 

In the counter claim, the Defendant/Applicant claimed payment of 28,497.400/- being value of materials yet to be supplied or money paid in excess.

The Plaintiff /Respondent then filed an amended plaint on 21.02.14 stating the dates when the materials are said to have been supplied and that they were worth 859,012,450/=. Out of the sum it is contended the Applicant/Defendant paid only 668,497,400/- leaving a balance of 205,637,250/- and that was the amount now being claimed.

In the amended Written Statement of Defence and counter claim filed on 07.03.14, the Applicant reiterated the contents of the Written Statement of Defence and also denied ever being supplied with any building materials in 2012, or any materials worth 859,012,450/- as claimed.

Also that the difference between the sum of Ug. Shs. 859,012,450/- claimed in the amended plaint and the Shs. 668,497,400/- alleged to have been paid would not be Shs.205, 637,250 /-.The counter claim was maintained.

On 20.03.14. The Applicant/Defendant filed this application praying court to reject the plaint for failure to disclose a cause of action and for being frivolous and vexatious.  And that the amended plaint filed on 21.02.14 following receipt of the Applicant’s Written Statement of Defence be struck out or be disallowed for being prejudicial to the Applicants.  The application was supported by the affidavit of Kibirango Erastus.

The application was called for hearing on 30.04.14.  Reiterating the grounds of the motion and the supporting affidavit, Counsel for the Applicants contended that the amendment was prompted by the counter claim and the figure claimed was put at Shs. 205,000,000/- thereby changing the cause of action but claiming  wrong figures.

Asserting that the amendment prejudices the Applicants’ defence, Counsel contended that the plaint did not disclose any cause of action in the first place.  And that the law is that a suit that does not disclose a course of action cannot be amended.

 

While acknowledging that amendments are allowed at all times to avoid a multiplicity of suits and complete determination of disputes between parties, he emphasized that amendments should not prejudice the other party and should not be inconsistent with the pleadings.  Pleadings, he added are important as they make certain the parties defence and bind them.

 

The amended plaint, Counsel argued is inconsistent with the original plaint as the sum claimed changed.  And since the Plaintiff/Respondent admitted receiving shs. 668,000,000/-, the balance claimed to be outstanding is incorrect and the plaint is not capable of amendment as it would prejudice the Applicant/ Defendant.

The case of Motor Care UG Ltd vs. Attorney General was cited in support of the arguments.  The case sets out the principles of amendment.

In reply, Counsel for the Respondent/Plaintiff insisted that the amendment discloses a course of action.  That any errors appearing therein were typing errors.  And the sums due and owing to the Plaintiff/Respondent can only be determined if suit is heard on merit.

That since there is a reply to the amendment; no prejudice has been caused to the Applicant; who does not deny delivery of the materials.  The cause of action has not changed apart from the sum claimed going up.  The amendment arises out of the same transaction and is not inconsistent with the pleadings.  Counsel prayed for dismissal of the application.

In rejoinder, Counsel argued that by making amendment, the Plaintiff/Respondent established a cause of action that was not there before.  Applicant claims that Plaint was over paid and what is sought to be recovered by the Respondents is not clear.

 

The issue for the court to determine is: whether the amended plaint should be struck out for failure to disclose cause of action.

 

After hearing the submissions of both Counsel, and upon giving them the best consideration I can in the circumstances; I am inclined to overrule the preliminary objection.

As pointed out by Counsel for the Applicant and rightfully so, “amendments are allowed at all times to avoid a multiplicity of suits and to allow effective determination of disputes”.

Courts have emphasized that, “amendments to pleadings sought/ made before hearing should be freely allowed if no injustice is caused to the other party; however, negligent and careless may have been the omission and however, late the proposed amendment.  There can be no injustice if the other side can be compensated by costs”.  – Refer to Waminga Vs Central Bank of Kenya [2002] IEA 319 (CAK) – Where the case of Eastern Bakery vs. Castelino [1958] EA 461, was followed, among others.

Counsel for the Defendant’s argument in this case is that; the amendment brought a new cause of action where there was none before and that the amounts claimed in the amended plaint have obvious errors.

 

Nonetheless, there are decided cases to the effect that “an amendment may be allowed ….not withstanding that its effect will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as the cause of action in respect of which, relief had already been claimed in the suit by the party amending.”See Kuloba Vs Oduol [2001] 1EA 101 HCK)

I find that the above decision applies to the circumstances of the present case.  The new cause of action arises out of the same facts i.e. supply of materials for the renovation of the UN Base, except that the amendment goes back to the period in 2012, unlike in the original plaint.

The amendment will accordingly be allowed for those reasons,

The rationale of allowing such amendments is that “they do not cause any prejudice to the other party who is taken to have knowledge of such cause of action at the time the original pleading is filed”. Refer to Kuloba’s Case (Supra)

In the present case, the Applicant filed a reply to the amended plaint and will not suffer any prejudice as both parties will be heard.

While Counsel Claims there are errors apparent in the figures – such errors or defects in the pleadings can be amended to enable the court determine the real question or issues raised –

For those reasons, court over rules the preliminary objection and directs that the main suit be set down for hearing.

Costs will abide the outcome of the main suit.

 

Flavia Senoga Anglin

JUDGE

16.05.14