THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL COURT DIVISION)
MISC. APPLICATION NO. 25 OF 2013
(Arising from Civil Suit No. 274 of 2008)
MATAGALA VINCENT:::::::::::::::::::::::::::::::::::: APPLICANT
UGANDA REVENUE AUTHORITY::::::::::::::::: RESPONDENT
BEFORE HON. LADY JUSTICE HELLEN OBURA
This application was brought under Order 6 rules 19& 31 of the Civil Procedure Rules SI 71-1 (CPR) seeking for orders that:
Leave be granted to the applicant to amend the plaint in the main suit;
Costs of the application be provided for.
The application was supported by the affidavit of the applicant, Mr. Matagala Vincent and the grounds are inter-alia that; the plaint in the main suit is lacking in so far as fraud, concealment and negligence is not pleaded and that unless the plaint in the main suit is amended, the applicant’s suit will not escape the application of the Limitation Act and the statute time bar. Furthermore, that in 1995/1996, the applicant gave information which led to recovery of taxes but on several occasions when he followed up his matter by asking the Ag. Commissioner Audit, he was given no answer. He deposed that due to failure by the respondent to pay his reward, he complained to the Inspector General of Government (IGG) and several correspondences followed between the office of the IGG and the Commissioner General of the respondent including a promise to call a tripartite meeting which was never effected and due to those correspondences his claim was much alive in 2005/6 and was still being addressed by the two arms of Government. The applicant concluded that the claim that the suit is time bared does not arise because it was filed in 2008. He also averred that by the respondent keeping him in the dark concerning his rewards the respondent/defendant actions tantamounted to fraud, concealment, or negligence.
The respondent filed an affidavit in reply and opposition to the application deposed by Mr. Haluna Mbeeta, an advocate on grounds inter-alia that; the applicant has not demonstrated that any fraud and concealment existed on the part of the respondent before filing the head suit on 25th October, 2008; the applicant has pleaded negligence as a ground for amendment but has not disclosed its particulars thereof and the person he alleges to have been negligent and how the negligence affected the plaint in the head suit; the amendment is intended to defeat the issue of limitation of the applicant’s cause of action duly framed by the parties which is yet to be determined by court thereby making it legally impermissible; and that the application is a disguised attempt by the applicant to lead fresh evidence which he ought to have given at the time of giving his testimony in court.
When the matter came up for hearing on 4/3/2013, Mr. Namugowa Perry Anthony appeared for the applicant while Mr. George Okello appeared for the respondent. They were directed by court to file written submissions which they did hence this ruling.
Both counsel relied on the affidavits and based their submissions substantially on the principles governing the amendment of pleadings as has been stated by courts. The summary of those principles which I agree with are that;
Amendment sought before the commencement of the hearing of the case which pleadings the intended amendment relates, should be freely allowed if the amendment can be made without prejudice to the other party. Application for amendment should be made at the earliest stage of the proceedings;
Where an amendment is not any different in quality from the cause of action it should be allowed. A court will therefore not exercise its discretion to allow an amendment which substitutes a distinctive cause of action for another or to change by means of the amendment the subject matter of the suit. The court will refuse to exercise its discretion where the amendment would change the action into one of a substantially different character;
No amendment would be allowed which would prejudice the rights of the opposite party existing at the date of the proposed amendment.The amendment should not work injustice to the other side. An injury which can be compensated by the award of costs is not treated as an injustice;
An amendment would be necessary within the meaning of Order 6 Rule 19 of the CPR if it is for the purpose of determining the real questions in controversy between the parties;
Multiplicity of proceedings should be avoided as far as possible and all amendments which avoid such multiplicity should be allowed;
An application made malafide should not be granted;
No amendment should be allowed where it is expressly or impliedly prohibited by law (e.g Limitation).
See:Gaso Transport Services (Bus) Ltd v Martin Adala Obene SCCA NO. 4/1994; Lubowa Gyaviira & others v Makerere University HCMA NO. 0471/2009.
Counsel for the applicant submitted that the application should be allowed since it does not seek to introduce anything different from the original cause of action in the head suit nor the subject matter of the suit but merely to state the date when the cause of action arose. He relied on the authority of Lubowa Gyaviira (supra). Counsel further submitted that from the copy of the original plaint in the head suit, there is no indication as to when the cause of action arose as required by Order 7 Rule 1(e) of the CPR. He contended that this was an omission by the applicant’s former counsel which left the impression that the suit is statute barred since in the plaint the only period mentioned are 1991, 1995 and 1997 when the plaintiff began working for the defendant/respondent and assigned an officer to report, and in the year 2000 when he was assigned to report to one Mr. Zaake and then subsequently to Mr. Adrian Kyamugina.
Counsel further submitted that there were several correspondences between the respondent and the office of the IGG between 2005 and 2006 whereto the applicant had complained for redress and in so far as the two institutions of Government were still trying to settle the matter, the cause of action still subsisted and accrued to the plaintiff until about April 2006 when the respondent’s official refused and or failed to schedule a meeting to decide on the applicant’s claim/reward. Counsel submitted that the attachments marked “B”,”C”, and “D” to the applicant’s affidavit being the said correspondences were all handed over to the applicant’s former counsel by the applicant before filing the suit and they wonder why the former counsel did not refer to them in the plaint nor introduced them in court at the time of the applicant/plaintiff’s testimony.
According to counsel, such lapses, negligence, omission or mistake of former counsel should not be visited on the applicant. He relied on the authority of Kadebhai vs. Shamerabi & others (2008) HCB 16 for this principle.
Moreover, according to counsel, this application is brought at an early stage of the court proceedings when only one witness of the applicant/plaintiff has testified and there are still more four witnesses remaining so it should be allowed. Counsel relied on the authority of Gaso Transport (supra). He submitted that according to the authority of McLey v Allibahi(1938) EACA 70,it was clearly stated that an amendment can be allowed as far as even at appeal stage.
Counsel further submitted that, the proposed amendment would not prejudice the rights of the respondent and should be allowed to introduce the date the cause of action accrued so that the real question is determined and multiplicity of proceedings avoided as per Order 6 Rule19 of the CPR.
According to counsel for the applicant, there was a deliberate attempt by the respondent’s official to cover up information by keeping the applicant in the dark about his claims, which conduct amounted to negligence and or fraudulent concealment, and as such the defence of limitation cannot be relied upon where negligence or fraudulent concealment is pleaded. They rely on NSSF vs. ALCON International Ltd CA No. 15/2009 for this principle.
On the other hand it was submitted for the respondent that the applicant has not demonstrated that any fraud and concealment existed on the part of the respondent before filing the head suit on 25/10/2008 and that he did not have the information which he now purports to seek to introduce/slot in the evidence which he has already led. Counsel wondered how the applicant obtained the documents if he did not have them or whether he applied for discovery under Order 10 rule 12 of the CPR.
Counsel for the respondent further submitted that the application has been brought at so late a stage of the proceedings when the substrata of the case has already been laid down by the applicant in his evidence and should not be allowed. He relied on the authority of Gaso Transport (supra) for this submission.
He was of the view that the proposed amendment is intended to defeat the issue of limitation of the applicant’s cause of action duly framed by the parties for determination by the honorable court in the head suit and as such the amendment would defeat the right of the respondent to have that issue determined by court, which right existed before the proposed amendment. He sought the aid of the authority of Lubowa Gyaviira (supra) to support this view.
Counsel invited court to dismiss the application as it is intended to defeat the real question for determination by court and is a disguised attempt by the applicant/ plaintiff to lead fresh evidence which he should have done at the time of giving his evidence in court.
Moreover according to him, the applicant’s claim that the year when the cause of action arose was not disclosed in the original plaint and therefore the plaint needs to be amended to disclose the same is already resjudicata as the same has been raised by the defendant in the head suit by way of preliminary objection when he challenged the original plaint that it does not disclose a cause of action and the objection was overruled by the first trial judge, Arach-Amoko, J (as she then was).
Counsel for the respondent also contended that a miscarriage of justice will occur if the amendment is allowed, and no amount of cost will atone the same since the respondent will have been denied the chance to have the issue of limitation determined by court. According to counsel, the application is a disguised attempt to change the entire case of the applicant to something new. He submitted that the applicant still has the option of calling the persons he is alleging to have dealt with, with leave of court instead of purporting to amend the plaint. He concluded that the application is an abuse of court process and prayed that it should be dismissed with costs.
I have considered the affidavit in support and in opposition to the application and the annextures thereto together with the submissions of both counsel and the authorities relied upon. I have also carefully read the pleadings in the head suit and all the attachments thereto as well as considered the record of proceedings in the head suit and the evidence therein so far adduced by the applicant.
It is not disputed that at the scheduling conference one of the issues agreed upon for determination is whether the suit is time barred. The applicant now seeks leave of court to amend the plaint to show that the suit is not time barred. It seems to me that this would prejudice the right of the defendant to have the issue of limitation which has already been framed conclusively determined. To my mind, this would cause injustice to the respondent that may not be reasonably atoned by award of costs.
Furthermore, upon looking at the proposed amended plaint especially paragraphs 4 and 7, I would be inclined to agree with the submission of counsel for the respondent that the intended amendment if allowed would change the case to something else and delay the court from speedy determination of the issues that have already been agreed upon. The proposed amendment seeks to introduce two new causes of action namely; negligence and fraudulent concealment that were never pleaded in the original plaint. Allowing such an amendment that introduces a distinct new cause of action would therefore be contrary to the principles that govern amendment of pleadings.
Most importantly, in paragraph 6 of the original plaint the applicant had pleaded that he would show that he sought help of the IGG in recovering the amounts due and owed him by the respondent/defendant. To my mind that paragraph took care of the applicant’s concerns about when the cause of action arose and it was incumbent upon him to testify about that matter by stating when that help was sought and the period it was handled and concluded. After all, the question of limitation in my view is a matter of evidence. Instead of the applicant adducing that evidence, his new counsel opted to bring this application which in my view was not necessary. It has only served to delay further proceedings in the main suit.
The omission of the applicant’s former counsel to lead evidence on the issue of limitation and tender the relevant documents in my view could be corrected by the current counsel seeking leave of court to recall the plaintiff or even call another witness to testify on the issue and not by amending the plaint.
I am also of the view that the intended amendment is an attempt by the applicant to fill the gaps in his case after failing to testify on the issue of limitation which has already been agreed upon for determination by the parties. This court is therefore inclined to reject it since it would be contrary to the principle that an amendment intended to fill gaps in the applicant’s case should be rejected. See Lubowa Gyaviira (supra)at page 7-8.
In the result, I do find that this application offends some of the well established principles that govern amendment of pleadings and it is accordingly disallowed with the result that it is dismissed.
Costs shall be in the main cause.
I so order.
Dated this 19th day of April 2013.
Read in chambers in the presence of Mr. George Okello for the respondent and Mr. Justus Nuwamanya a legal assistant from the firm of the applicant’s advocate.