THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION 64/2014

(FROM CIVIL SUIT 481/2012)

FBW UGANDA LTD ------------------------------------------------ APPLICANT /PLAINTIFF

VS

MODERN DEVPS. UG. LTD --------------------------------- RESPONDENT/DEFENDANT

BEFORE JUSTICE FLAVIA SENOGA ANGLIN

RULING

This application was brought under O. 1 r.7, O. 52 RR. 1 &3 Civil Procedure Rules and S. 98 Civil Procedure Act; seeking leave of court to amend the plaint to include Dr. Kaijuka Mutabazi Emmanuel as a 2^nd Defendant.

Costs of the application were also applied for.

The grounds of the application are that the amendment is necessary to enable the Applicant recover money due to it. And that it is in the interests of justice and to avoid a multiplicity of proceedings that the application should be allowed.

The application was supported by the affidavit of  Lina Osborn a representative of the Applicant/Plaintiff, which was relied upon at the hearing.

The Respondent opposed the application in an affidavit in reply filed on 28.02.14, on the grounds that it was bad in law, untenable and improperly before court.

Alternatively but without prejudice to the foregoing that, the Applicant/Plaintiff has no cause of action against the intended 2^nd Defendant; among other things.

The representative of the Applicant swore an affidavit in rejoinder dated 17.03.14 that was filed in court on 18.03.14. It was contended in the affidavit that the application is fit and proper and that the applicant has a cause of action against the intended 2^nd Defendant.

It was also argued that the land the subject of the contract in dispute is in the names of the intended 2nd Defendant. Further that since the contract was breached;   it is the intended 2^nd Defendant who always negotiated for settlement of the outstanding balance.

After two adjournments for reasons set out on record, Counsel were directed to file written submissions by 31.03.14, and appear in court on 03.04.14.

When the application was called on 03.04.14, both Counsel were in court together with the representative of the Applicant and the intended 2^nd Defendant.

Counsel for the Respondent submitted that since written submissions had been filed, it was expected that the ruling was ready.

But Counsel for the Applicant clarified that the reply to the Applicant’s submissions had been served upon her on 02.04.14 at 2.30pm; contrary to the orders of court for all submissions to be filed by 31.03.14.

And that Counsel for the Respondent had raised a preliminary point of law without indicating that he was going to do so, contrary to the established practice. Regardless of the omission, Counsel added, the preliminary point had been responded to. She requested court to allow her serve Counsel for the Respondent.

The request was vehemently objected to by Counsel for the Respondent on the ground that Court had set times lines that had not been complied with; and yet leave of court had not been sought.

Reaffirming her submissions regarding the preliminary objection, Counsel for the Applicant added that since the response had been filed before hearing of the application, failure to observe the time lines set by court should be disregarded in the spirit of Article 126 of the Constitution. The article enjoins court to exercise substantive justice without undue regard to technicalities.

It was asserted that if the intended 2^nd Defendant was not added as a party, court would not be able to effectively and finally determine the issues in the suit which would result into a multiplicity of suits. Counsel prayed court to extend time within which to serve her response on Counsel for the Respondent.

Counsel for the Respondent conceded to extension of time and accepted service there and then. He then applied to be allowed to put in a response by 08.04.14. The request was allowed by court in the interests of justice and the ruling was fixed for 17.04.14.

Noting that the response was filed on 04.04.14, court proceeds to determine the application.

According to the submissions of the Applicant the suit is based on a consultancy agreement between the parties concerning a building.  The 1^st Defendant/Respondent failed to pay the balance of the fees due to the Applicant/Plaintiff. The land where the building is situated are said to belong to the intended 2^nd Defendant and that the documents of the consultancy were signed by him.

The Applicant believes that the intended 2^nd Defendant is the beneficiary to the consultancy contract; and that the remedy the Applicant seeks can only be availed if he is made a party to the suit. And also that the addition of the 2^nd Defendant  to the suit will  enable court to effectively and completely adjudicate upon and settle  all questions arising from the suit and to fairly dispose of the matter. Further that, the addition of the 2^nd Defendant necessitates amendment of the plaint.

Counsel for the Respondent submitted that the affidavit in support of the application contains hearsay evidence and cannot stand alone, as a result of which there no affidavit is supporting the application. The case of Mayers & Another Vs Akim Ranch Ltd HCCS 166/71 [1974] 1 EA was cited in support of the argument.

It was also argued that the 1^st Defendant being a body corporate capable of suing and being sued, the proposed 2^nd Defendant  a director thereof cannot be added as a party as he acted  on behalf of the Company. And for that reason, the Applicant had no cause of action against the intended 2^nd Defendant personally. The case of Joel Peter Ekwere Vs Managing Director Century Bottling Co. Ltd HCCS 29/03 was relied upon to support the argument.

Commenting about the alleged lack of resolution by the Respondent, Counsel asserted that with the Power of Attorney given by the proposed 2^nd Defendant, lack of a resolution was not an issue.

Applying that the application should be dismissed  for all the reasons set out in the affidavit in reply and in rejoinder, Counsel asserted that  decided cases have established that  “Article 126 (2) (e)  of the Constitution is not a magic wand in  hands of defaulting litigants”.- Case of  Kasirye Byaruhanga  & Co. Advocates  Vs Development Bank C.A. 02/97

In rejoinder, it was emphasized for the Applicant that justice could not be done without the 2^nd Defendant being added as a party to the suit.

Moreover that with the source of information disclosed; the affidavit in support cannot be said to be hearsay. And that therefore the case of Makula International Vs Cardinal Nsubuga [1982] HCB 11, was not applicable to the circumstances of the present case.

Further that the paragraphs in the affidavit complained of are supported by documents. Pointing out that the case of Three Ways Shipping Services Vs MTN Uganda Ltd Misc. Application 584/ 13 and Mayers & Another (supra) are to the effect that if sources of information are revealed and application is interlocutory, the affidavit will stand.

Considering the submissions of Counsel, the cases cited and the provisions of the law applicable to the circumstances of this case, I must state that I am more persuaded by the submissions of Counsel for the Applicant.

With the contention that the proposed 2^nd Applicant was involved in the transaction from which the suit arises, signed the documents, the land in issue is in his names and that he appears to be the beneficiary to the whole transaction, it is only imperative that he be joined as a party to enable court effectively determine the question as to which of the Defendants is liable and to what extent. - O.1 r. 7 CPR.

It is apparent from the circumstances that common questions of law and fact are likely to arise. Those issues can only be properly and effectively determined if all parties are before court and they are accorded a hearing. And if the proposed 2^nd Defendant is not joined as a party to the suit, it may result into a multiplicity of suits. Under O. 1 r. 3 CPR parties in such a situation may be joined as parties.

The submission that the affidavits in support of the application has hearsay evidence cannot be sustained since the sources of information are disclosed and there are supporting documents are attached.  If the proposed 2nd Defendant as a party, he will have a chance to contest the documents.

The power of Attorney said to have been given by the 2^nd Defendant to the 1st defendant can only also be proved in evidence at the hearing.

The court finds that the presence of the 2^nd Defendant before the court is necessary to facilitate effective and complete adjudication and settlement of all questions in the suit.- O.1 r.10 (2) CPR; and to avoid all possible multiplicities of legal proceedings concerning those matters.-See S.33 of the Judicature Act.

No injustice will be occasioned to any of the parties since they will each be accorded a hearing.

For all those reasons, the application is allowed ad the following orders made:

• The proposed 2^nd Defendant should be added as a party to the suit.
• The plaint should also be amended in such a manner as may be necessary; and the amended  copies of the summons and the plaint shall be served upon the new Defendant and on the original Defendant.- O.1 r.10 (4) CPR
• The 2^nd Defendant to file his defence within 15 days from the date of service of the amended plaint.
• The 1^st Defendant amended defence within the same period
• Costs will abide the outcome of the main suit.

FLAVIA SENOGA ANGLIN

JUDGE

17.04.14