THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
COMMERCIAL DIVISION
MISCELLANEOUS APPLICATION NO. 421 OF 2012
(Arising from HCCS No. 246 of 2012)
NBS TELEVISION LIMITED::::::::::::::::::::::::::::::::::::::::: APPLICANT
VERSUS
UGANDA BROADCASTING CORPORATION:::::::::::::::: RESPONDENT
BEFORE HON. LADY JUSTICE HELLEN OBURA
RULING
This is a ruling in an ex-parte application brought under Order 1 rule 14 (1) & (2) of the Civil Procedure Rules (CPR) for orders that a third party notice doth issue to the respondent as a necessary party to the suit for the purposes of indemnifying or otherwise contributing to liability that may be imposed on the applicant arising from Civil Suit No. 246 of 2012 between Supersport International (PTY) Ltd and the applicant in the event that judgment is entered against the applicant in that suit.
The application is supported by an affidavit sworn by Mr. Ramathan Mbago the applicant’s Chief Operations Officer. The gist of the grounds stated in that affidavit are that the respondent represented to the applicant that it had acquired rights to air the UEFA EURO 2012 soccer matches without disclosing any limitations to its said rights thereby inducing the applicant to pay for and utilize the said rights for which it is now being sued.
Counsel for the applicant filed written submissions which I have considered together with the law and the authorities relied upon. Order 1 rule 14 (1) empowers this court to grant leave to a defendant, who claims to be entitled to contribution or indemnity against any person not a party to the suit, to issue a third party notice to that person. The position of the law relating to third party notice was explained in the case of M/s Panyahululu Co. Ltd v M/s New Ocean Transporters Co. Ltd & Others HCCS No. 523 of 2006 by Bamwine, J. (as he then was) who referred to an earlier exposition of that law inD.S.S. Motors Ltd v Afri Tours and Travel Ltd HCCS No. 12 of 2003. He stated thus:
“….I understand the law to be that in order that a third party be lawfully joined, the subject matter between the third party and the defendant must be the same as the subject matter between the plaintiff and the defendant and the original cause of action must be same. In other words the defendant should have a direct right to indemnity as such, which right should have, generally, if not always, arisen from contract express or implied”.
In the instant case, it is contended by the applicant that it was induced by the respondent, who represented to it that it had acquired the right to air EURO 2012 and did not disclose any limitations, to pay for and utilize that right for which it is now being sued. In other words, the applicant contends that it derived the right to air EURO 2012 from the respondent for valuable consideration based on its representation.
I have looked at the documents attached to the affidavit in support particularly annexture “C” which confirmed that the respondent had agreed to share the rights of EURO 2012 with the applicant upon payment of some moneys as per two cheques dated 8th June 2012 and 1st July 2012.
On the basis of that correspondence and taking into account the law as stated above, this court finds that the subject matter between the applicant and the third party and that between the plaintiff and the applicant/defendant both relate to airing EURO 2012. For that reason, I am convinced that this is a proper case where a third party notice should issue.
In the circumstances, this court is inclined to grant leave to the applicant to issue a third party notice to the respondent and it is accordingly granted. The notice must be filed within ten days from the date of this ruling.
I so order.
Dated this 5th day of November 2012
Hellen Obura
JUDGE
Ruling delivered in chambers in the presence of Mr. Joseph Kyazze for the applicant whose Assistant Manager Mr. Alex Kamukama was also present.
JUDGE
5/11/12
