Uganda Legal Information Institute - Parties https://old.ulii.org/tags/parties en TSMP (U) Ltd v Registrar of Titles & Anor (MISCELLENOUS APPLICATION NO. 184 OF 2017) [2019] UGHCLD 4 (14 March 2019); https://old.ulii.org/ug/judgment/hc-land-division-uganda/2019/4 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/parties" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Parties</a></li><li class="field-item even"><a href="/tags/joinder" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Joinder</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA AT JINJA</strong></p> <p><strong>MISCELLENOUS APPLICATION NO. 184 OF 2017</strong></p> <p><strong>(ARISING FROM CIVIL NO. 14 OF 2016)</strong></p> <p> </p> <p> </p> <p><strong>TSMP (U) LTD………….…………..…………….…..APPLICANT</strong></p> <p><strong>VERSUS</strong></p> <p> </p> <ol> <li><strong>REGISTRAR OF TITLES</strong></li> <li><strong>NANTAMBALA JOYCE…………………..………RESONDENTS</strong></li> </ol> <p> </p> <ol style="list-style-type:upper-alpha"> <li> </li> </ol> <p><strong><u>BEFORE: HON. LADY JUSTICE EVA K. LUSWATA</u></strong></p> <p> </p> <p>The applicant filed this motion for orders that the Jinja District Land Board be added as a defendant in Civil Suit No. 14/2016 (hereinafter referred to as the main suit). The main ground is that the Jinja District Land Board (hereinafter referred to as the Board) is a necessary party in the main suit to explain to Court the circumstances under which Plot 24 Spire Road, Jinja (hereinafter referred to as the suit land) was allocated to the 2<sup>nd</sup> respondent, especially in view of the applicant’s existing occupancy, and an interim order barring all transactions on the suit land at the time.</p> <p> </p> <p>Mr. Bob Napinder Singh Dhillon, the applicant’s attorney swore an affidavit in support of the motion. He stated that the applicant’s lease on the suit land is still in place until 2024 and the applicant has since purchasing the suit land been in occupation thereof. He continued that the allocation by the Board to the respondent and the current free hold title in the latter’s favour is fraudulent. That as such, the Board as the controlling authority and allocator of the suit land to the respondent ought to be joined as a defendant.</p> <p> </p> <p>Ms. Nantabala Joyce the 2<sup>nd</sup> respondent filed a much belated affidavit in reply. She argued that owing to the claims in the plaint, adding the Board would not help the Court resolve the dispute and is a mere waste of time she added that no reasons have been advanced for the Court to grant the application.</p> <p> </p> <p>On 7/3/2019, I allowed <em>exparte </em>proceedings owing to the absence of the 2<sup>nd</sup> respondent and her advocate. The 2<sup>nd</sup> respondent’s affidavit cannot be considered for as pointed out by applicant’s counsel, it was filed well out of the period permitted by statue. Thus, this application stands unopposed and only the pleadings and brief submissions of counsel Godfrey Malinga will form the basis of my ruling.</p> <p> </p> <p>The provisions of Order 1 rr 10(2) permit any party to a pending suit to move Court to add a party whose presence in the suit, is necessary to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit. The applicant claims that the Board is one such person.</p> <p> </p> <p>I note that no mention was made of the Board in the main suit. The claim is one against the 2<sup>nd</sup> applicant for making unfounded adverse claims to the suit property and for the Registrar of Titles to decline from issuing a special certificate of title.</p> <p> </p> <p>However, it is claimed in the application that it is the Board that fraudulently allocated the suit land to the 2<sup>nd</sup> respondent enabling her to obtain a free hold title, a copy of which was attached. Ordinarily, the Board as the statutory controlling authoritywould be the entity that allocates land within Jinja District, before titles of any tenure are issued. The suit land is situated at Spire Road in Jinja and it would thus be correct for applicant’s counsel to argue that the Board would be a necessary party to this suit. They need to come on board to explain the circumstances under which an allocation of the suit land was made to the 2<sup>nd</sup> respondent, if at all, especially in view of the subsisting lease in favour of the applicant, and an interim order restraining against any dealings in the suit land.</p> <p> </p> <p>I would therefore allow the application. The applicant is permitted to add the Jinja District Land Board as a third defendant in the suit. They should take note of any statutory notices that may be required preceding an action against a statutory body, if any applies to the applicant. The applicant is permitted to file an amended plaint that reflects any additions within 15 days of this order and serve it upon the respondents. The respondents will likewise be allowed to respond to the amended plaint within the time permitted by statute.</p> <p> </p> <p>Costs of this application shall be in the cause.</p> <p> </p> <p>I so order.</p> <p> </p> <p> </p> <p> </p> <p><strong>………………………</strong></p> <p><strong>EVA K. LUSWATA</strong></p> <p><strong>JUDGE</strong></p> <p><strong>DATED: 14/3/2019</strong></p> <p> </p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-d9c729bceedc1d1314d0c2c54e7ac2d3"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/hc-land-division-uganda/2019/4/hc-land-division-uganda-2019-4.pdf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a>, <a href="https://old.ulii.org/system/files/judgment/hc-land-division-uganda/2019/4/hc-land-division-uganda-2019-4.docx" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ulii.org%2Fsystem%2Ffiles%2Fjudgment%2Fhc-land-division-uganda%2F2019%2F4%2Fhc-land-division-uganda-2019-4.pdf" data-src="https://old.ulii.org/system/files/judgment/hc-land-division-uganda/2019/4/hc-land-division-uganda-2019-4.pdf">https://old.ulii.org/system/files/judgment/hc-land-division-uganda/2019/4/hc-land-division-uganda-2019-4.pdf</iframe> </div> </div> </div> </div> </div> Wed, 27 Mar 2019 10:56:25 +0000 Eunice Logose 29546 at https://old.ulii.org Kabaluku & Anor v Makoha ([node:field-casenumber]) [1992] UGHCCD 1 (18 June 1992); https://old.ulii.org/ug/judgment/hc-civil-division-uganda/1992/1 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/parties" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Parties</a></li><li class="field-item odd"><a href="/tags/joinder" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Joinder</a></li></ul></section><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-aef6c23c298bd3bc15953117e23b0239"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/hc-civil-division-uganda/1992/1/hc-civil-division-uganda-1992-1.pdf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ulii.org%2Fsystem%2Ffiles%2Fjudgment%2Fhc-civil-division-uganda%2F1992%2F1%2Fhc-civil-division-uganda-1992-1.pdf" data-src="https://old.ulii.org/system/files/judgment/hc-civil-division-uganda/1992/1/hc-civil-division-uganda-1992-1.pdf">https://old.ulii.org/system/files/judgment/hc-civil-division-uganda/1992/1/hc-civil-division-uganda-1992-1.pdf</iframe> </div> </div> </div> </div> </div> Fri, 03 Aug 2018 08:56:27 +0000 Eunice Logose 28838 at https://old.ulii.org The Registered Trustees Of the Nile Education Society Jinja Vs The Medical Supritendent Jinja Hospital (MISC. APPLICATION NO. 027 OF 2015) [2015] UGHCCD 130 (8 April 2015); https://old.ulii.org/ug/judgment/hc-civil-division-uganda/2015/130 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/parties" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Parties</a></li><li class="field-item even"><a href="/tags/joinder" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Joinder</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA AT JINJA</strong></p> <p> </p> <p><strong>MISC. APPLICATION NO. 027 OF 2015</strong></p> <p>(ARISING FROM CIVIL SUIT NO. 051 OF 2010)</p> <p> </p> <p><strong>THE REGISTERED TRUSTEES OF </strong></p> <p><strong>THE NILE EDUCATION </strong></p> <p><strong>SOCIETY JINJA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::  APPLICANT</strong></p> <p> </p> <p><strong>VERSUS</strong></p> <p> </p> <p><strong>THE MEDICAL SUPERINTENDENT </strong></p> <p><strong>JINJA HOSPITAL  :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT</strong></p> <p> </p> <p><strong>BEFORE:  THE HON. JUSTICE GODFREY NAMUNDI</strong></p> <p> </p> <p> </p> <p><strong>RULING</strong></p> <p> </p> <p> </p> <p>This Application is brought under Section 98 Civil Procedure Act, Section 33 of the Judicature Act and Order 1 rule 13 of the Civil Procedure Rules.</p> <p> </p> <p>It seeks Orders that:</p> <ol> <li>Uganda Land Commission and the Attorney General and the Commissioner for Land Registration be added as parties to the suit.</li> <li>Costs of the application.</li> </ol> <p> </p> <p>The grounds upon which the Application is based are:</p> <ol> <li>There is a Civil suit No. 51/2010 against the Medical Superintendent of the Respondent.</li> </ol> <p> </p> <ol> <li>The said suit seeks Declaratory Orders as to ownership of the Applicant and a permanent Injunction among others.</li> </ol> <p> </p> <ol> <li> That while the suit was on going, the officials of the Uganda Land Commission and the Commissioner for Land Registration were in the process of illegally sub-dividing and disposing of the suit land to 3rd parties.</li> </ol> <p> </p> <ol> <li>That a total of 7 Plots have been sub-divided and subsequently sold by the Respondents.</li> </ol> <p> </p> <ol> <li>It is just and equitable to grant the order.</li> </ol> <p> </p> <p>The Application is supported by the affidavit of DHARMESH PATEL who claims to be the registered proprietor of the suit property.    This is by virtue of repossession and renewal of a Lease over the suit land.</p> <p> </p> <p>The Respondent has refused to give vacant possession of the suit property to the Applicant prompting him to file the head suit.</p> <p> </p> <p>The intended additional Defendants have gone ahead to sell parts of the suit land (7 Plots) thereof to members of the public and hence the need to add them as parties to the suit.</p> <p> </p> <p>The Respondent through Kosia Kasibayo of the Attorney General’s Chambers filed an affidavit in reply.     They deny that the Respondent has ever repossessed the suit property as it does not appear in the Land Registry records.</p> <p> </p> <p>Further that the Applicant has never had physical possession of the suit property right from 1972.</p> <p> </p> <p>The affidavit also states that the Respondent is a non-existent person in law and hence not capable of being sued.  The amendment or the Application to add the intended Defendants would therefore be futile.</p> <p> </p> <p>Counsel for the Applicant has submitted that in pursuance of attempts to gain vacant possession to the suit land they went ahead and warned the public through a Caveat Emptor in the New Vision Newspaper.   The intended Defendants still went ahead and sub-divided and sold parts of the suit land.</p> <p> </p> <p>The Respondents have submitted that since the Respondent is a non-existent person, the proceedings are defective.    That a Plaint against non-existent person is incurably defective and no amount of amendment can correct it.  That the Applicant should instead file a fresh suit.</p> <p> </p> <p>Addition of parties is governed by Order 1 rule 13 of the Civil Procedure Rules.</p> <p> </p> <p>This Application should ordinarily have also cited Order 6 rule 19 of the Civil Procedure Rules since the moment parties are added, the consequence is that the pleadings must be amended.</p> <p> </p> <p>The governing principle is that amendments should be allowed if no injustice is caused to the other party so that all issues in the dispute can be addressed.  This is in line with Article 126 (2) (e) of the Constitution regarding administration of substantive justice.   Ref:  <strong>Kalumba &amp; another Vrs. Kakira Sugar Works Ltd. &amp; another; Misc.  Application No. 461/2014, (Arising out of Civil Suit No. 33/2013).</strong></p> <p> </p> <p>It is in order for an Application to add or strike out a party to also amend the pleadings.  It would therefore not be necessary to file 2 Applications, one for adding a party and the other for amending Pleadings because one automatically leads to or is a consequence of the other.</p> <p> </p> <p>The Applicant’s Counsel Mr. Olweny tried to desegregate the two positions when Counsel for the Respondents tried to argue that the Pleadings are defective and hence cannot be cured by amendment.</p> <p> </p> <p>Unfortunately, the Respondents concentrated on the argument that the Plaint is defective and hence the intended adding of parties/amendment is untenable.   Their arguments are based on the status of the Respondent who they claim is non-existent.  Reference was made to the cases of <strong>John Ntambi Vrs. A.G. &amp; another Civil Suit No. 275/87,  Abdurahman Elamin Vrs. Dhabi Group &amp; 2 others; Civil suit No. 432/2012 and Joseph Mpamya Vrs. Attorney General; HCCS No. 2/95.   </strong>In all the three authorities the overriding theme is that a Plaint in the names of the wrong Defendant cannot be amended but can only be rejected.</p> <p> </p> <p>In the instant case, the Applicant/Plaintiff has a claim over land currently being occupied by the Respondent.  If it is true that the person(s) he has brought to Court are the wrong party, then trying to add the intended additional Defendants would not cure the defect.</p> <p> </p> <p>A perusal of the Application and the supporting affidavit also reveal that the Applicant’s complaints against Uganda Land Commission and the Commission for Land Registration are in respect of sub-dividing the suit land and selling it to other parties.</p> <p> </p> <p>It is not clear whether the activities complained of are part and parcel of the activities of the first Respondent.</p> <p> </p> <p>It would appear that the Application if allowed would have the effect of introducing a completely different dimension to the proceedings.   This would in effect whittle away what I have gleaned as the defence of the Respondents that the Application and the Plaint disclose no cause of action having been filed against a wrong party.</p> <p> </p> <p>The principles governing amendment of pleadings have been laid out in <strong>GASO Transporters Services Ltd. Vrs. Martin Adala Obene – SCCA 4/94.</strong></p> <p> </p> <ol> <li>The Court may allow amendment as may be necessary for determining the real question of controversy between the parties to avoid a multiplicity of proceedings.</li> </ol> <p> </p> <ol> <li>The Application should not be such that to allow amendment would prejudice and cause injustice to the opposite party.</li> </ol> <p> </p> <ol> <li>The Application should be in good faith.</li> </ol> <p> </p> <p>In the instant case, it is my view that allowing the Application would prejudice the defendants by introducing new causes and would interfere with the intended defence that the suit discloses no cause of action.</p> <p> </p> <p>In conclusion, I find that the intended amendments/Application to add parties is not sustainable.  The Application is disallowed.    The Applicant should sit down with their Lawyers and determine the parties, cause of action etc.  and file a proper suit against the correct parties.   The Application is dismissed with costs.</p> <p> </p> <p> </p> <p> </p> <p><strong>Godfrey Namundi</strong></p> <p><strong>JUDGE</strong></p> <p><strong>08/04/2015</strong></p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-378fd1982a4c4ea8d8a4104249ee6262"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/hc-civil-division/2015/130/hc-civil-division-2015-130.docx" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Tue, 05 Jan 2016 10:59:18 +0000 Ben Mulingoki 25816 at https://old.ulii.org Patrick Kimbareeba v M/s Newlines Limited (Misc. Appl. No. 178 of 2000) ((Misc. Appl. No. 178 of 2000)) [2000] UGHC 6 (29 February 2000); https://old.ulii.org/ug/judgment/high-court/2000/6 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/parties" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Parties</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>&nbsp;</p> <p><strong><u>THE REPUBLIC</u></strong><u> </u><strong><u>OF </u></strong><strong><u>UGANDA</u></strong><u> </u><br /> <strong>IN </strong><strong>THE</strong> <strong>HIGH COURT OF UGANDA AT </strong><strong>KAMPALA</strong><br /> <strong>MISCELLANEOUS APPLICATION NO.178 OF 2000<br /> (Arising from Civil Suit No.97 of 2000)<br /> PATRICK </strong><strong>KIMBAREEBA:</strong><strong>::::::::::::::::::::::::::::::: PLAINTIFF<br /> Versus</strong><br /> <strong>M/</strong><strong>S</strong><strong><em> </em></strong><strong>NEWLINES</strong> <strong>LIMITED:</strong><strong>:::::::::::::::::::::::::::: DEFENDANT</strong><br /> &nbsp;</p> <p><strong><u>BEFORE: </u></strong><strong><u>THE</u></strong><u> </u><strong><u>HON. MR. AG. JUSTICE </u></strong><strong><u>P. </u></strong><strong><u>K. </u></strong><strong><u>MU</u></strong><strong><u>GAMBA</u></strong><br /> &nbsp;</p> <p><strong><u>RULING </u></strong><br /> &nbsp;</p> <p>This is an ex parte application brought by the Defendant herein seeking leave of this court to issue a third party notice to the Sovereign state of the United States of America. The application is by Chamber Summons under Order 1 rule 14 of the Civil Procedure Rules.<br /> <br /> The facts leading to the application are that the Defendant hired a Toyota double cabin pick-up registration number 038 UDK from the plaintiff for a period of five days; to wit 24th December 1998 to 29th December 1998. The Defendant was hiring the said motor vehicle upon a request by the Embassy of the United States who had instructed the Defendant to provide them with a motor vehicle. It appears the Defendant did not have one of its own to supply. Rental was agreed at Shs.180, 000/= for each of the five days. As fees the Defendant was to get Shs.80, 000/=. The United States Embassy took delivery of the motor vehicle but before the vehicle could be returned it was involved in an accident near Kotido. The vehicle, which by now was damaged, was towed to Kampala where it was parked in the compound of the United States Embassy at Bugolobi. The Plaintiff sues the Defendant in Civil Suit No.97 of 2000 for:<br /> <br /> (a) &nbsp;&nbsp;&nbsp;&nbsp; Pre-accident value of the vehicle of Shs.15, 000, 000/=.<br /> <br /> (b) &nbsp;&nbsp;&nbsp;&nbsp; Loss of earning up to the time of filing this suit Shs.36, 000,000/=.<br /> <br /> (c) &nbsp;&nbsp;&nbsp;&nbsp; Loss of earning from the date of filing this suit at the rate of Shs.100,000/= per day until full settlement.<br /> <br /> (d) &nbsp;&nbsp;&nbsp;&nbsp; Costs of this suit.<br /> <br /> (e) &nbsp;&nbsp;&nbsp;&nbsp; Interest on the above at 30% from the date of filing this suit until final settlement.<br /> <br /> In its application for third party notice the Defendant contends that it acted as agent of the intended third party, the United States of America, when it hired the motor vehicle. That the United States of America was principal. It further contends that lack of diligence on the part of the principal led to the accident and consequential damage and that the United States of America is either personally liable or vicariously liable for the acts of its servants or agents or employees as these were acting in the course and scope of their employment.<br /> <br /> The third party notice applied for seeks for the United States of America to be joined in order that in the event of the Defendant being found liable there will be indemnity available to it by the United States of America as third party. The position is apparently premised on the law of agency. That being the case, since there is no express agreement between the Defendant and the intended third party the right to indemnity may be implied from the circumstances of this particular case.<br /> <br /> In my view of the relationship between the Plaintiff and the Defendant on one hand and the Defendant and the intended third party on the other it would be far-fetched to regard the United States of America as principal, disclosed or undisclosed. The facts show that the Defendant in its own right approached the Plaintiff for hire of a motor vehicle. In turn the Defendant in its sweet time hired out the motor vehicle to the Embassy of the United States of America. Clearly, no principal was disclosed and as such no agency is in existence. Any reference to an agency is by the Defendant alone. The Plaintiff does not allude to it. I cannot therefore see where the Defendant would be premised to seek indemnity from the intended third party on the basis of agency. I reject such a claim.<br /> <br /> Another consideration should be the relationship between the suit against the Defendant on the one hand and what its claim against the intended third party is likely to be. What emerges from the written statement of defence and the application hereto is reference to agency. The written statement of defence goes further to highlight the existence of a contract between the Defendant and the intended third party and breach of the same by the third party. Suffice it to say that the terms of that agreement are yet to be disclosed! The case of the Plaintiff against the Defendant is premised on breach of contract. Clearly the causes<em> </em>of action in the claims of the two parties are at a tangent. They cannot be reconciled. In <u>Yafesi Walusimbi </u><u>vs.</u><u> Attorney General [1959]</u><u> EA 223 at page 225 </u>Lyon J. property put the position thus:<br /> <br /> “In my opinion two things are clear in the third party procedure:<br /> <br /> (1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; in order that a third party may be legally joined the subject matter of the suit must be the same and<br /> <br /> (2) &nbsp;&nbsp;&nbsp;&nbsp; the original cause of action must be the same. In the instant case the plaintiff’s claim is based on negligence. On the other hand the defendant’s claim as against the third party is based on a different tort - fraud - while the third party’s claim as against the fourth party is based upon fraud and/or breach of contract.”<br /> <br /> In the <u>Walusimbi case </u>court ordered that because there subsisted different causes of action orders giving leave for third party notices be set aside. Court quoted with approval the case of <u>Birmingham and District Land Company </u><u>vs.</u><u> London and North Western Railway Company </u>(1887), 34 Ch.D 261 concerning a rule similar to our Order 1 rule 14. The court stated:<br /> <br /> “in order to bring a case within O.XV1 r 48, it is not enough that if the plaintiff succeeds the defendant will have a claim for damages against the third party, but the defendant must have against the third party a direct right to indemnity as such, which right must-generally, if not always -arise from a contract expressed or implied.”<br /> <br /> The words of Bowen L.J. in the <u>Birmingham and District Land Company </u>case (ibid) at page 274 deserve quoting in this matter. He stated:<br /> <br /> “- But it is quite clear to my mind that a right to damages, which is all that the Defendants have here if they are entitled to anything, is not a right to indemnity as such. It is the converse of such a right. A right to indemnity as such is given by the original bargain between the parties. The right to damages is given in consequence of the breach of the original contract between the parties. It is an incident which the law attaches to the breach of a contract, and is not a provision of the contract itself.<br /> <br /> In the circumstances I am inclined to reject the Defendant’s application as the facts attending it do not support great of such leave.<br /> &nbsp;</p> <p>P.K. MUGAMBA<br /> <strong><u>AG. JUDGE </u></strong><br /> 29/02/2000<br /> &nbsp;</p> <p>&nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-57e85556e3e0b728dcc2b6fb4cfc6479"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/2000/6/high-court-2000-6.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:54:34 +0000 Anonymous 16755 at https://old.ulii.org