THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
M.A No. 524 OF 2020
(Arising out of H.C.C.S No. 439 Of 2013)
ROSE ATUGONZA--------------------------------------------- APPLICANT
HAJJI NTEGE NUHU-------------------------------------RESPONDENT
(Suing both as Administrator of the
Estate of the late Musa Musoke and
Before: Hon. Lady Justice Olive Kazaarwe Mukwaya
The application was brought by Chamber Summons under Order 6 Rules 19 and 31 of the Civil Procedure Rules and section 98 of the Civil Procedure Act wherein the Applicant is seeking the following orders;
- The Applicant/11th defendant be granted leave to amend her written statement of Defence.
- Costs of the application be provided for.
The grounds of this application are fully set out in the affidavit of the Applicant herein but briefly are as follows;
- The Applicant’s case was misconstrued and misrepresented to Court with inconsistencies at the filing of her Written Statement of Defence.
- The inadvertence and/or negligence of the Applicant’s former lawyers that is manifested in the pleadings on Court record shall prejudice the Applicant/11th defendant irretrievably if not addressed by amendment.
- It is in the interest of justice that the Application is allowed.
Counsel for the applicant submitted that this application was initiated by the Applicant to amend her Written Statement of Defence to state, harmonise and/or correct the mistake(s) and/or inadvertent omissions in her pleadings originated by her former lawyers.
It is argued that the Applicant was sued for fraud, illegality and irregularity of her purchase and ownership of all property comprised in Block 277 Plot 239 by the Respondent. Her former lawyers inadvertently did not or vaguely answered the claims in a misrepresentative manner that was prejudicial to her.
Paragraphs 5, 6, and 7 of the Applicant’s affidavit and paragraph 13 of her proposed Amended Written Statement of Defence lays emphasis on the mistake and/or misrepresentation of her case by her former advocates. The misrepresentation is as regard to the details of her purchase of the property, which was from Amisi Ssembajjwe and not Musa Musoke, as was misrepresented in her defence by the former lawyers.
Counsel submitted that primarily a litigant’s case emanates from the documents availed to an advocate representing the litigant. The advocate ought to put a proper case for adjudication for his or her client, considering all questions in controversy between the parties.
Further, as against the Respondent’s claims for fraud, illegality and irregularity of her certificate of Title over the suit land comprised in Block 277 Plot 239, her former lawyers scantly denied liability.
It was therefore his submission that an advocate’s mistake and/or inadvertence in doing his or her work as a legal expert on behalf of a litigant must never be visited upon a litigant who comes to Court seeking substantive Justice. He relied on a number of cases including but not limited to the case of Banco Arabe Espanol v. Bank of Uganda  2 EA 22 and Phillip Keipto Chemwolo and another v. Augustine Kubende  KLR 495 to augment this argument.
Counsel further highlighted the case of Mulowooza & Brothers Ltd. vs. N.Shah & Co. Ltd Scca No.26 Of 2010, where the Supreme Court held that;
- Courts should freely grant amendments to pleadings so as to avoid creation of a multiplicity of suits.
- Pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side.
- There is no injustice if the other side can be compensated by costs.
With the above stated, he contended that the sought amendment is intended to make the Applicant’s case clear and unambiguous, to harmonise all misrepresentations earlier made by the Applicant’s former lawyers and for Court to offer the necessary reliefs having regard to proper facts of the respective litigants’ case(s).
Relying on those authorities, Counsel for the applicant prayed that the Applicant’s application be found with merit to allow the Applicant leave to amend her pleadings and/or correct the errors and omissions in the Applicant’s Defence on record. This was to enable the Applicant be able to properly advance her case and be heard.
The Respondents’ submissions
The respondent’s Counsel submitted in reply that while being cognizant of the law and principles upon which amendments should be allowed, they were not persuaded that the applicant had sufficiently justified amendment of pleadings 7 years after her Written statement of Defence was filed.
He further argued that despite fronting mistake of Counsel as the reason for amendment and relying on case law on how and why the amendment should be allowed, Counsel for the applicants failed to adequately explain why the application is crucial.
Counsel further argued against the removal of the gift deed in the amended defence adding that it would be utterly prejudicial to allow the applicant change her defence. He added that this would deny the respondent a chance to challenge such and other documents especially since they are tactfully left out in the intended defence. He was fortified by the case of Eastern Bakery Vs Castelino (1958) EA 641 where it was held that;
“………… The court will refuse leave to amend whereby the amendment will prejudice the rights of the opposite party existing at the date of the proposed amendment e.g. by depriving him of the defence of limitation.”
It was his submission therefore that Court cannot permit the applicant to blatantly deny admitted facts which would prejudice the respondent in the conduct of his case to prove the admitted evidence. He further argued that the denial in paragraph 4, 5,6,7 and 8 of the proposed written statement of defence of facts which were previously admitted in paragraph 5 of the written statement of defence on court record cannot be accepted and the specific amendments proposed which depart from the previous admissions of fact.
Counsel further opposed the application contending that it is an abuse of Court process and both incompetent both in law and in fact. He thus relied on the case on the case of; Benkay Nigeria Limited vs Cadbury Nigeria Limited No. 29 of 2006 (Supreme Court of Nigeria), where it was held that :
“In Seraki vs Kotoye (1992) 9 NWLR (pt 264) 156 at 188, this court on abuse of court process held….the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue”
On that basis, he submitted that the applicant’s application is against court’s duty to protect public conscience as it tends to allow applications of a nature which tends to change their pleadings under a shield of mistake of counsel.
Counsel finally submitted that the applicant in the instant case gave her lawyers instructions to file a defence therefore she is bound by the defence and the documents so attached as they appear on Court record unless she can prove that they were doctored. He supported this argument with the case of Twiga Chemicals v. Viola Bamusedde Bwambale, C/A Civil Appeal No 9 of 2002 where it was emphasized that that a man or woman who empowers an agent to act for him/her is not allowed to plead ignorance of his/her agent's dealings.
He thus prayed that the application be dismissed with costs to the respondent.
Submission in rejoinder.
In response to Counsel for the respondent’s submissions, Counsel for the applicant reiterated his earlier submissions adding that in the Respondents submissions in reply, the Respondent had not objected to the amendment at all.
On the point of the Respondent not being persuaded by the Applicant’s filing the application seven years after filing the defence, Counsel argued that he only needed to emphasise the position of the law on amendments adding that amendment of pleadings is not barred by Limitation.
The Applicant’s Counsel added that the respondent further contends that the intended amendment is an abuse of Court process; a malicious abuse of the legal process against the integrity of the judicial process but did not at all labour to expressly show how so. He thus argued that applications for amendment are a creature of law and therefore cannot in whatever circumstances constitute an abuse of Court process. He also submitted that the application is not any way an afterthought intended to prejudice the Respondent’s case.
On the point of admitted facts, Counsel for the Applicant submitted that there was no admission of the contents of paragraph 5 by the Applicant as is contended by the Respondent. Counsel further asserted that no admission whatsoever was made by the Applicant evidently to agree to a misstatement of the true facts of her case. Rather the blatant misstatements of her case therein forms the gist of the intended amendment.
He thus argued that it is the Applicant’s case that her case was misrepresented upon a mistake by her former lawyers in her Written Statement of Defence and in the circumstances she seeks amendment to correctly put up her case before Court for adjudication; all the litigant is required to do is to satisfy Court that the Amendment is necessary in the circumstances of the case.
Finally, the Applicant’s Counsel submitted that he took cognizance of the true position of the law that a litigant is bound by the actions of his or her advocate, that however it is not absolute. He thus prayed that the Court overrules the respondent’s objections and allow the application.
Whether the Applicant has established grounds to be granted leave to amend her Written Statement of Defence?
I appreciate the submissions of Counsel for the parties and I have taken them into consideration. In the matter of Cropper v Smith (1884) 26 CHD 700, Bowen LJ had this to say;
‘I think it is a well-established principle that the object of courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights…I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought to correct, if it can be done without injustice to the other party- courts do not exist for the sake of discipline but for the sake of deciding matters in controversy; and I don’t regard such amendment as a matter of grace…it seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.’
In the instant application, the amendment sought is to add clarification to the 11th Defendant’s defence. The proposed amendment, which I have perused, does not introduce facts after the filing of this suit. The trial in this matter has not started and this Court cannot see how the Respondent would be prejudiced by the amendment.
Mistake of Counsel is not the same as mistake of an agent. A party to a suit is advised by Counsel, and more often than not follows that advice, while an agent takes instruction from his/her principal. The case of Twiga Chemicals v. Viola Bamusedde Bwambale, C/A Civil Appeal No 9 of 2002 is therefore not applicable in this matter. If parties were bound by their pleadings before conclusion of the trial, Order 6 of the Civil Procedure Rules would be redundant.
Persuaded by the holding in Cropper v Smith, supra, I am satisfied that the Applicant has established sufficient grounds to be granted leave to amend her written statement of defence and that no injustice that cannot be compensated for in costs shall be occasioned to the Respondent.
Application is granted and I hereby order as follows;
- Applicant is granted leave to amend her Written Statement of Defence and should do so by the 28th September 2020.
- Plaintiff to file Reply by the 5th October 2020
- Costs of this Application shall be in the cause.
Olive Kazaarwe Mukwaya
21 September 2020
Delivered by email to: Mr. Felix Ampaire for the Applicant