THE REPULIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL SUIT NO.504 OF 1993
UGANDA PETROLEUM CO. LTD:::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF
BEFORE: THE HONOURABLE MR. JUSTICE I. MUKANZA
The defendant was granted leave to appear ad defend and he thereby filed in his written statement of defence within the period stipulated in the ruling.
At the trial he plaintiff company called its first witness Martin Owinyi and then called PW2 in the names of Ndikola Senoga Wilson and finally one Brian Othieno PW3 the legal secretary of the plaintiffs Uganda Petroleum Company. After that the plaintiffs closed its case the learned counsel representing the plaintiffs company made an
oral application to amend the pleadings to include the prayer for damages. The application apparently was somehow opposed by the application hence this ruling to resolve the matter.
Mr. Bwanika submitted that the back ground of this case was that the case was filed under summary procedure recover a debt summarily. They realized the defendant got leave to defend the suit but at the end of the plaintiff’s evidence it appears that the defendant should be awarded some damages. I was referred to the case of D. Dodo limited Vs. G.S. Dindar Singh 1961 EA page 282 where the learned Judge after dealing with order 6 r 18 and 30 of the Civil Procedure Rule held that pleadings could be amended orally at The hearing as per order 6 r 30 of the civil procedure rules.
Mr. Bwanika continued that given the background of this case the defendant will not be prejudiced because he has not given his defence.
Mr. Mubiru on the other hand submitted that the application could be entertained by the court although it has been made orally but contended that it does not assist the court to adjudicate on the issues before the court. It sought to amend the prayers where the ground upon which damages arose are not prepared. A mere amending of the prayers without the damages being raised in the pleadings if he plaintiff is allowed to amend he must specifically mention the ground upon which the damages could be awarded. He also prayed for costs of such an amendment to be paid to the defendant inany event.
In reply Mr. Bwanika submitted that his learned friend did not take into account his prayer. He was applying for amendment after going through the evidence of the three witnesses. The company suffered more than the money owing to the company most especially the last witness. Time spent in discussions and the financial embarrassment. His learned friend has been cross examining PW3 on legal matters on such matters as inconveniencing the plaintiff company. He could not see any prejudice if the amendment was granted. The purpose of the pleading is to give notice to the adverse party and the plaintiff has given reason in his evidence for claiming general damages. If his learned friend wanted to put matters which had featured in evidence to be put in the pleadings he was not going to call evidence. He prayed that costs abide by the outcome of the main suit.
I have very carefully considered the submissions by the learned counsels order 6 r 18 of the Civil Procedures allows their party to amend the pleadings at any stage of the proceedings in such manner and on such terms as may be just and all such amendments shall be as may be necessary for the purpose of determining the real questions in controversy between the parties. And those amendments to pleading should be by chamber summons rule 30 of order 6 of the Civil Procedure Rules. See also Evarist Mugabi vs. Attorney General 1991 HCB page 65. There are however some authorities where it has been held that amendment to pleadings could be made orally during the course of the Trial Sir Audley in D.D. Baw, Limited vs. G.S. Dider Singh Supra had this to say at page 284:—
Order 48 of the Civil Procedure Rules deals
Besides the referred to cases there are host of authorities on the question of amendment; of he pleadings. In Lolgigh vs. Goscham 1891 ch 73,81. There it was held that the court will refuse leave to amend where the amendment substantially would charge the action into one of substantially different character or where the amendment would prejudice the rights of party existing at the date of the proposed amendment e.g. by depriving him of a defence of limitation accrued since the issue of the right Weldon vs. Neal 1887 19 QBD at page 394. The main principle is that amendment should not be allowed if it causes injustice to the other party.
All in all the application to amend the pleadings by inserting in the prayer (damages) is rejected with costs to the defendant.