The Commercial Case Law Index is a collection of judgments from African countries on topics relating to commercial legal practice. The collection aims to provide a snapshot of commercial legal practice in a country, rather than present solely traditionally "reportable" cases. The index currently covers 400 judgments from Uganda, Tanzania, Nigeria, Ghana and South Africa.
Get started on finding judgments that are relevant to you by browsing the topic list on the left of the screen. Click the arrows next to the topic names to reveal a detailed list of sub-topics. Most judgments are accompanied by a short summary written by subject-matter expert postgraduate students from the University of Cape Town.
The issue was whether it would be just and equitable to wind up the respondents in terms of s 81(1)(c)(ii) and s 81(d)(iii) read with s 157(1)(d) of the act on the grounds that executive directors of the first respondent unconsciously abused the corporate personality of the second respondent by acting unlawfully. The other issue was whether the minister had locus standi (the right or capacity to bring an action) to bring the application.
The court held that it was just and equitable to wind up a company if the company is conducting unlawful activities and where there is a deadlock between the parties. Further, that s 157 extends locus standi to a broad range of people.
The court found that there were just and equitable grounds to wind up the first respondent because there was a deadlock between the parties, unlawful misappropriation of public funds and non-disclosure. In that light, also wind up the second respondent because its existence depended on that of the first respondent. The court, also, found that the minister, as a member of the executive, had established the necessary locus standi to bring the application in the public interest in terms of s 157(1)(d).
Accordingly, the court granted the final liquidation and ordered that the costs of winding up include costs of the application.
The applicant approached the court to set aside the legal opinion and report of the first and second respondents’ respectively and in turn, the respondents challenged the validity of the application before the court.
The court considered whether the applicant was properly incorporated and whether it had locus standi to bring a petition before the court.
It was held that the applicant indeed did not have locus standi to petition the court to challenge the findings of the respondents due to not being properly incorporated.
The court found that the merger between the entities that formed the applicant was in contravention of both the Constitution and legislation regulating companies. The court held that the Constitution was violated on two occasions. Firstly, when an agreement was entered into with an entity controlled by the government without the approval of the Attorney-General. Secondly, when the entity controlled by the government decided to hold a minority shareholding in the company that assisted in incorporating the applicant, which had the effect of parliament not having control of the funds as required. Legislation regulating companies was not complied with since the requirement for incorporating a private company was not observed.
As a result, the preliminary objection raised by the respondents succeeded. The applicant did not exist in law thus it could not sue or be sued. No costs ordered as the applicant does not exist.
Two applications where lodged by both parties. The first application sought the rejection of a lodged case on the ground that the defendant in the suit, described as ‘the board,’ was a non-existing person, with no capacity to sue or be sued. Immediately thereafter, the applicant lodged the second application where he sought leave to amend the initial suit by adding a Pastor Kayanja as a party to the suit, in addition to the board.
In its judgement this court held that the board did not exist in law. The application to add Kayanja was held to be an attempt to substitute a non-existing defendant and thus in reality there was no valid plaint in the suit. The reason being that a suit in the names of a wrong plaintiff or defendant cannot be cured by amendment (as the applicant attempted to).
Hence, the first application succeeded, and the second application was dismissed.
The plaintiff sought a permanent injunction against the defendant to prevent it from selling, offering for sale, or dealing in goods bearing the plaintiff’s registered trademark.
The court considered whether the defendant infringed the plaintiff’s registered trademark and whether the defendant was a bona fide user of the trademark. The court also considered whether the defendant had locus standi (standing) to challenge the registration of the plaintiff’s trademark.
Held, the defendant did not have locus standi to challenge the plaintiff’s trademark registration. Held, although the defendant was a trader, it could not claim innocence by virtue of advertising the plaintiff’s trademarks. The court stated that points of law had to be argued and evidence adduced by the plaintiff in so far as infringement is concerned in order for final judgement to be granted.
The court extensively examined existing trademark legislation and decided cases and concluded that the defendant did not have locus standi to challenge the plaintiff’s registration as the plaintiff enjoyed statutory protection due to registering its mark in Uganda first.
Interim injunction granted in favour of the plaintiff until the trial.
The court made a ruling on a preliminary objection raised against a suit filed by the respondent to review a consent judgment executed between the applicants and the Uganda Revenue Authority. The applicants submitted that the respondent lacked locus standi to make the application according to Order 46 rule 1 of the Civil Procedure Rules.
The court went into some detail and examined who a ‘person aggrieved’ is. It was held that the expression referred to a person who suffered a legal grievance. However, the court in its interpretation followed English law and held that the expression cannot be restricted to definite categories with sharp definitive lines (restrictive interpretation). Consequently, the court held that the expression would also cover public interest litigation as embodied in the Ugandan Constitution, to include a member of the public who brings an action to ensure that the law is enforced or upheld.
The court noted that the objection was procedural and that the respondent’s application for review was procedurally incorrect since it was framed as a public interest litigation application. The court therefore determined that the main issue before it was whether a wrong procedure invalidates the proceedings. The court relied on article 126(2)(e) of the constitution in making a holding that the court had jurisdiction to determine the matter without undue regard to the technicalities.
Accordingly, the court dismissed the application with costs.
The appellant who undertook to invest and acquire shares in a telecom company brought an action
against the respondents for breach of contract, damages and interest. The appellant’s suit was dismissed
on a preliminary point of law as it disclosed no cause of action against the 2 nd and 3 rd respondents.
The court considered the issue of jurisdiction and whether the court had jurisdiction to hear the matter based on a contract which was concluded to be governed under Dutch law.
The defendants breached their contract as a result of not being able to fulfil their obligations in terms of the contract, and subsequently they unilaterally terminated the contracts.
The defendant contended that the application should be dismissed as the court does not have jurisdiction to hear the suit.
The court found that where parties have bound themselves to an exclusive jurisdiction clause, they ought to comply with that obligation, unless the party who is suing outside the scope of the prescribed jurisdiction gives adequate justification for doing so.
The court found that in order to dispute a jurisdiction, you have to show that the intention was to evade the operation of the provision in the relevant law, and that there was an element of fraud or duress or other evidence of mala fides (meaning an act done in bad faith). If these elements cannot be proved, then the selected forum will be upheld.
The court held that the contract was drawn and executed in Uganda, the plaintiffs reside in Uganda and if the matter was heard in a different jurisdiction the cost of housing, transporting and feeding a number of witnesses, including cost of counsel in a different jurisdiction would be nonsensical and would deny the defendants access to court.
The court found that the expertise of courts in Uganda are competent to deal with the matter, and as a result they had the required jurisdiction to entertain the matter.
Application is denied.
The court exercised its original jurisdiction to interpret constitutional provisions relating to the right of the General Legal Council to introduce examinations and interview as requirements for admission into the practical component of the law course.
The defendants raised a preliminary objection disputing the jurisdiction of the court claiming there was no issue of interpretation and also claimed that the plaintiff lacked locus standi (standing to bring the matter before the court). The court held that the matter was of public interest thus the plaintiff did not have to demonstrate personal interest. The court determined whether the imposition of the new admission requirements was unconstitutional. It was held that the council had the authority to do so but it was unconstitutional since the new requirements were implemented without legal backing (regulations). Secondly, the court determined whether the council’s failure to specify alternative places and modes of instruction for students who qualified to join the school of law was unconstitutional and held that the plaintiff was unable to prove the same. Accordingly, the matter succeeded in part and the court declared that the new admission requirements that led to exclusion of qualified persons were unconstitutional and that the Council’s policy on reviewing examination scripts and quota violated the constitution.
This appeal is based on a decision of the Court of Appeal that waived the respondent’s non-compliance with prerequisites to the issuance of a writ under Order 2 rule 4(2) of the High Court (Civil Procedure) Rules 2004.
The court determined whether the non-compliance was fatal to the proceedings. The court noted that the provisions of Order 2 rule 4(2) are obligatory, thus could not be waived as per Order 81 of the High Court (Civil Procedure) Rules 2004. The court held that non-compliance with the rule rendered the writ void. The court applied the mandatory rule that a plaintiff should disclose the identity and addresses of all persons on whose behalf it is suing, and when the rule is not complied with the writ cannot be amended after its issue. Accordingly, the court upheld the appeal and the writ of summons issued on 4 March 2010 were declared a nullity. Consequently, all proceedings and judgments of the High Court and the Court of Appeal were set aside.
The plaintiff sought a writ (being a written order of the court to abstain from acting) against the defendants. The plaintiff asked the court to find that the court below did not have jurisdiction to determine matters involving the interpretation and enforcement of the Constitution. The defendants in turn raised a preliminary objection to the plaintiff’s writ.
This case considered the preliminary objection raised in objection to the writ and whether the court had jurisdiction to entertain the plaintiffs action calling for a writ against the defendants, thus did the plaintiff properly invoke the jurisdiction of the court and whether the proper parties were before the court.
The court found that in determining whether its jurisdiction had been properly invoked, they were obliged to look at the preliminary objection of the writ before them.
The plaintiff argued that a single judge lacked the jurisdiction to determine matters involving the interpretation and or enforcement of the Constitution.
The court found that its jurisdiction had been properly invoked. On the second issue the court found that the Plaintiff had capacity to bring the application before this court.
The court found that the first defendant was properly cited and was a party in this application, however the second defendant was not a party to the action as the plaintiff did not show any act or omission which would justify the plaintiff citing him.
The second defendant was therefore struck out.
Preliminary objection overruled.
The case related to a declaration of title of a piece of land that was in dispute because both parties claimed ownership.
The court highlighted an appeal seeking to overturn a lower court’s decision must show that the court’s decision was wrong in law, did not take into consideration evidence or made findings in the absence of evidence. In essence a trial court decision can be overturn if it was not based on well-founded reasoning.
Further when suing on behalf a group of people, the party must clearly indicate so and failure to do so may affect that parties’ legal right to sue. Once you have indicated in what capacity you’re instituting a claim, you cannot subsequently change this.
The court in this case upheld and allowed the appeal because the Court of Appeal permitted the appeal that was not based on evidence before it. Further it was a fatality for the defendants to endorse their counterclaim by indicting they were doing so in a representative capacity.
The case related to a petroleum agreement between the Ghanaian government and a Norwegian company. The agreement was ratified by Parliament, but the Minister of Energy thereafter refused the company’s assignment of their Petroleum Agreement to its wholly owned local subsidiary. The question was whether Parliament’s permission is required to terminate a resource exploitation transaction, as they ratify it. The rationale for ratification is for transparency, openness and participation in matters involving natural resources but the exercise of checks and balances does not extend to approving termination of agreements that the executive has jurisdiction over. The court held that whereas Parliament ratified these agreements, the act remains an act of the executive and Parliament’s approval is not needed to terminate the agreement.
Litigation was commenced to recover a debt from a company incorporated in Australia that was wholly owned by a Ghanaian company. The High Court granted judgment in favour of the appellant for the amount due. The judgment was appealed because the respondent proposed a scheme of arrangement to reorganise their debts with their creditors. but the appellant subsequently the appellant filed a petition to liquidate the company as it was unable to pay off its debts. The court granted to wind up the company. However, the Court of Appeal granted a stay of execution of the winding-up before the respondent appealed the original decision of the High court to pay the amount due.
The appellant did not succeed with the appeal because they did not prove that the Court of Appeal failed to take relevant matters into consideration, considered irrelevant matters of misapplied the law.
The matter stems from an alleged breach of an agreement of refund by the respondent against the applicant. The agreement in question arose from a breach of the shipping contract by the applicant resulting in the respondent incurring a penalty from Tanzania Revenue Authority.
The main issue is whether the court could order for the joinder of the shipper and agent as defendants even when the applicant does not intend to sue them. The court began by clarifying that it has unlimited powers to join any party as a defendant if it is necessary to enable the court to effectually and completely adjudicate upon and settle all the relevant questions in suit. However, this power is exercised under the guidance of the dominus litis principle that grants the plaintiff the power to decide whom to sue.
In its reasoning, the court could not find a reason why the joinder was necessary as the dispute in question arose from a communication in which only the applicant and respondent were privy. Furthermore, the court heeded the respondent’s contention that as master of her own case she should not be compelled to sue a person she feels she has no claim. The court thus rejected the application to join the shipper and agent as co-defendant.
The main preliminary issue was whether the respondent, an executive agency, could be sued in its own name by the applicant who was seeking an order of temporary injunction.
Before the court could decide on the issue, however, it had to decide on whether the preliminary objection had been made prematurely. In response, it pointed out that the established position in the law is that a preliminary point ought to be raised as earliest as possible. It therefore held that the objection had been appropriate.
Returning to the main question, the court considered the Executive Agencies Act (the act), establishing that an executive agency can be sued under the act without joining the government and Attorney General only when there is a contractual dispute. Since the court could not ascertain that the application had been based on a contract, it found it improper that the applicant had filed for an order against the respondent without joining the government and Attorney General.
The court thus concluded that the application had been made in contravention of the legally required procedure and was thus not legally maintainable.
The case concerned a dispute about how to commence litigation on behalf of companies. The court held that whether or not failure to seek and obtain the permission of a company to institute litigation or an application is no longer the law in Tanzania. It was held that the issue of jurisdiction will allow a court to investigate factors to determine if the company gave permission to institute court proceedings. However, the party alleging that the company did not give authority must prove their case. Only when there is sufficient evidence will the court investigate the issue of jurisdiction. In this case, the applicant failed to prove his case and the application was dismissed.
In this case the applicant sought relief to set aside an ex parte order. The case illustrates the enquiry into determining who can rightly sue in the name of a corporation.
The court considered whether the High Court had made a consent order, or an ex parte order. The court held that though the order against the fifth respondent was a consent order, the order against the applicant was ex parte because the applicant was not present. The court held that the law gives the remedy to set aside an ex parte order and that it had the power under s 93 of the Civil Procedure Code (CPC) to enlarge the time period for an application.
The court considered the issue as to who was entitled to bring an action for and on behalf of the applicant. The court held that it was the company alone that could initiate or defend proceedings and not a shareholder of the company. The court held that it appeared that there were disputes regarding the internal management of the applicant. Thus, the shareholders or counsel who had initiated the application were not authorised persons.
The application was dismissed and the rest of the arguments regarding extension of time to file the application were set aside without determination.
This case considers the adducing of fresh evidence on appeal. The respondent had claimed title to a certain land. Dissatisfied by the High Court judgment; the appellants appealed to the Court of Appeal. On appeal they sought an order granting them leave to adduce new evidence. The reasons being:
1. that this evidence showed that the disputed land had been acquired by the government and that the respondent lacked the required locus standi to institute this case;
2. in an action to protect acquired land, only the Attorney-General has the requisite standing to sue and the respondent can only sue if he had been granted leave to do so by the Attorney-General; and
3. that the trial court lacked jurisdiction to have heard the case.
The respondent contended that the documents now sought to be used as additional evidence are not of such a nature that would affect the jurisdiction of the court and that it was the appellants' choice then not to tender these documents.
This court agreed with the counsel for the appellants. In the judgment, the court found the documents entailing strong points which would likely affect the jurisdiction of the trial court.
Additionally, the issue of jurisdiction was found to be fundamental and could be raised at any stage of the proceedings (even for the first time in this court).
Thus, in the interest of justice. these documents could be tendered on appeal as fresh evidence.
The respondent/plaintiff had sued the appellant/defendant for a liquidated debt following its default in payment and successfully applied for the matter to be placed on the undefended list. There it was heard exclusively on the papers to the respondent/plaintiff’s success. Two issues emerged on appeal: whether the trial court’s judgment contradicted the evidence, and whether the appellant’s notice of intention to defend disclosed a defence on the merits of the case, thereby justifying the matter’s transfer to the general cause list.
The appellate court held in favour of the respondents on both issues, finding first that the court had been thorough in its analysis of the evidence before it, and had crafted a reasoned order reflecting this.
The judge elucidated the purpose of the undefended list as a vehicle for swift justice where a defendant has no credible case. This was one such instance; the court found that the appellant had failed to raise a triable issue warranting the matter’s transfer to the general cause list. The appellant’s allegations of fraud did not conform to the recognised rules for establishing such a claim and were found lack any substance.
The appellant unsuccessfully invoked s 36(1) of the Constitution, contending that its right to a fair hearing had been breached through its being deprived of a comprehensive trial. The court affirmed the lawful function of the undefended list, emphasising that parties are given equal opportunities to be heard via the papers. Where a defendant was unable to raise a triable issue against the plaintiff’s claim, it could not resort to arguing that audi alterem partem had been flouted.
The appeal was dismissed.
The case before the appellate court concerned an appeal against the ruling of the High Court where the appellant’s case was dismissed. In the High Court, the appellant sought to challenge the jurisdiction of the High Court to hear the matter.
The court considered whether the non-inclusion of the word ‘council’ to the names of the respondents was a misnomer and whether the High Court was justified in dismissing the appellant’s preliminary objection.
The court held that the non-inclusion of the word ‘council’ was indeed a misnomer which stood to be amended with the court’s discretion. Once amended, it gave the High Court the right to dismiss the appellant’s preliminary objection.
The court relied on legislation establishing the respondents in order to identify their correct names and the court stated that no other names could have been intended than those put forward by the respondents. The court was of the view that the appellant was being unnecessarily technical which led to an incorrect legal view.
As a result, the appeal was dismissed, and the ruling of the High Court was affirmed. Costs were ordered in favour of the respondents.
The court considered an application in a matter that dealt with a judgment that omitted counsel’s name. The court was asked to review and/or vary and/or annulling part of the Judgment to reflect the change. The court had the inherent power to correct a slip in its judgment. However, the slip rule can never be used by a party to seek clarity over a judgment but only correct minor errors.
Where counsel does appear and argue for the appellant, their names should not appear on the judgment. Further, only the names of counsel and not the parties are listed on the judgment. Once a court has delivered its decision on a matter, it ceases to be seized of the cases (functus officio), and it cannot re-open it for any purpose whatsoever except in appropriate and exceptional cases such as when judgment
(a) was obtained by fraud or deceit;
(b) was a nullity;
(c) was given under a mistaken belief that the parties consented to it;
(d) was given in the absence of jurisdiction;
(e) the proceedings adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication; or
(f) was rendered with fundamental irregularity.
A court can however review a judgment to give effect to its meaning, correct clerical errors or accidental slips or omissions.
The court rejected the application to review or vary the judgment because it did not meet the criteria above but permitted the application to delete phrases that it was made in the absence of counsel and deleted reference to parties from appearances.
This was an appeal of the decision of a lower court to grant the respondents leave to amend their writ of summons in terms of substituting the 1st to the 12th plaintiffs with their personal representatives and guardians. The writ was taken out in the names of the deceased victims of the fire incident occasioned by the appellant. The appellant, via a notice of preliminary objection challenged the jurisdiction of the court to hear the application having been brought by deceased persons. This preliminary objection was not dealt with by the lower court in its decision.
The court held that the lower court committed a serious error when it did not consider a preliminary objection which challenged the jurisdiction of the court. A court must always establish that it has jurisdiction before it deals with any matter such as the merits of an amendment.
The court further held that the law recognizes two categories of persons who can sue and be sued. They are natural persons with life, mind and brain; and other bodies or institutions having juristic personality.
Accordingly, a dead person ceases to have legal personality and can neither sue nor be sued.
Therefore if the original writ of summons and initiating process are void, the court lacks jurisdiction to entertain or enter judgment in the matter. Based on the above principles, the court upheld the appeal and struct out the claim for want of jurisdiction.
The issue determined by the courts was whether the appellant was an interested party in the suit and whether the firstand second respondent were owners of the property in dispute.
The dispute emanated from the decision of the lower court to award a certificate of occupancy to the respondents after their original certificate was revoked. When their original certificate of occupancy was revoked the land was allocated to the appellant who had built a shopping mall. The appellant challenged the decision to award the occupancy certificate to the respondents. It argued that the trial court lacked jurisdiction to hear the matter because of non-joinder of all parties whose rights were affected by the court’s decision. The appellant further claimed that their right to fair hearing was infringed.
The respondents argued that the revocation of the original occupancy certificate was null and void because it was in breach of the Land Act. They contended that they could not join the appellants because they did not know of their existence and they were original owners of the land.
In deciding the matter, the court held that the respondents knew of the existence of the appellant and had a legal duty to join the appellant in the suit so that they can be given an opportunity to be heard. It ruled that the court had no jurisdiction to make orders that bind a party who was not given an opportunity to be heard. The appeal was thus upheld.
The appeal was against a garnishee order attaching a sum of approximately N97 million belonging to the appellant granted by the lower court. The appeal was based on the claim that the garnishee order was made without hearing the appellants’ earlier motion for a of stay execution. This, the appellants argued, was a violation of their right to a fair trial.
The respondent raised a preliminary objection that the appellant had no standing because it was judgement debtor, not the garnishee. It further argued that the appellants had not obtained leave to appeal.
The appellants responded by pointing out that they were respondents to the garnishee application, and that the funds that were to be attached belonged to them. Thus, they had locus standi (the standing and right to file this appeal).
The court held that it is only the garnishee that can appeal an order made by the court. It ruled that garnishee proceedings are strictly between the creditor and the garnishee. It found that the appellant lacked locus standi to file the appeal and the appeal was dismissed.
The court considered three issues. Firstly, how a court should exercise its discretion in regulating a motion meant to regularise the process and the other meant to terminate the process. Secondly, whether the respondents were necessary parties to the suit. Lastly, whether the trial court was correct in awarding costs.
The court held that the practice was to give priority to hearing a motion set to regularise a process if the motion succeeds the other motions seeking to terminate the proceedings will be withdrawn. The court also held that respondents are necessary to a suit if they would be directly or financially affected by the outcome of the judgement of the case. Also, the court held that courts have absolute discretion to either award or refuse costs.
The court found that the trial judge instead of taking the motion for joinder and amendment, preliminary objections of the first and second respondent based on jurisdiction were taken which were meant to terminate the points in limine. The court also found that the respondents were necessary parties because they are not only interested in the subject matter of the proceedings, but they constitute those who in their absence the proceedings could not be fairly dealt with. The court found that the costs awarded were not exceptionally high or punitive to conclude that the court's discretion was not in the interest of justice.
The court accordingly upheld the appeal.
The court considered whether the joining of the fourth to the sixth respondent constituted an abuse of court process which had an interest in the land in dispute.
The court held that the effect of the High Court rules was that substantial justice is achieved if the parties and trial judges achieve just, efficient and speedy dispensation of justice.
The court found that the joinder of the fourth to sixth respondents to contest title to the land did not constitute an abuse of court process. They were entitled in law to file a statement of defence or counterclaim against the appellants.
The court accordingly dismissed the appeal with costs.
The court considered whether the appellants were necessary parties in the suit, and what is the procedure to determine a reasonable cause of action.
The court held that a necessary party is one who is bound by the result of an action. Further held that cause of action is the facts which when proved entitle a plaintiff to a remedy against the defendant and the procedure thereof is showing that the statement of claim contained facts which if proved plaintiffs would succeed.
The court found that the appellants had made a premature application which supported the respondent’s contention that there is a reasonable cause of action, and that the second appellant is a necessary party to the proceedings.
The court accordingly dismissed the appeal and costs were awarded to the respondent.
Appeal against the lower court’s judgment dismissing its suit to declare the actions of the respondents to be illegal, and unconstitutional.
There were four issues for determination: whether the lower court’s decision was wrongly founded on a non-viable, invalid, and non-existent statement of defence; whether the lower court erred in holding that the appellant was a registered member of the respondents’ association; whether the respondents may rely on the defence available to the defendants’ association, which was not party to the proceedings; and whether the lower court erred in dismissing the appellant’s claims.
The court found that the lower court granted the application to amend the statement of defence. The amended statement already filed was deemed as properly served and filed. This order was not challenged by the appellants and was binding on the parties.
The second issue was decided in favour of the appellant. The appraisal of evidence and ascription of probative value thereto was the exclusive purview of the trial court. An appellate court will only interfere if the findings made were found to be perverse or unsupported by the evidence adduced. On examining the record, the court held that the trial court erred in finding that the appellant was a member of the respondents’ association, and the interests of justice justified an interference with the findings.
Issue three was held to be unrelated to any complaint or portion of the trial court’s judgment, and issue four was resolved in favour of the appellant.
This was an application for a review of the unanimous judgment of the ordinary bench of the Supreme Court which allowed an appeal filed by the respondents, in holding that failure to name foreign beneficiaries (per order 2 r. 4(2) of the Civil Procedure Rules) rendered the application void.
The court determined whether the application had passed the threshold of a review application. They applied the rule that review jurisdiction is not meant to be resorted to as an emotional reaction to an unfavorable judgment. In making the holding, the court considered the effect of noncompliance and held that the decision of the ordinary bench was not made through lack of care or misapplication of well-established case law. Accordingly, the court held that the circumstances of the case did not satisfy the requirements for review and dismissed the application. However, the dissent judgment faulted the decision to penalize parties on account of procedural blunders especially when the blunders can be easily cured by amendment.