THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT NAKAWA

MISCELLANEOUS APPLICATION NO. 554 OF 2014

(Arising from High Court Civil Suit No. 223 of 2014)

SSENFUKA ISAAC ::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

VERSUS

FRED KAKOOZA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

BEFORE: HON. LADY JUSTICE ELIZABETH IBANDA NAHAMYA

RULING

The Applicant filed a Chamber Summons (ex parte) pursuant to Order 1 Rules 14 of the Civil Procedure Rules S.I 71-1.This Application seeks for Orders that;-

1. Leave be granted to the Applicant to take out a Third Party Notice against Fred Kakooza (Respondent)
2. Costs of this Application abide the outcome of the main suit.

The Applicant was represented by Messrs WEB Advocates & Solicitors.

The grounds are set out in the Affidavit of Mr. Ssenfuka Isaac in which he states that he is the Defendant in High Court Civil Suit No. 223 of 2014 where he was, inter alia, sued for trespass and compensation, general damages, exemplary damages and costs of the suit. According to Mr. Ssenfuka, on 6^th March 2014, while he was carrying out his duties., he was approached by the Respondent who claimed that he is the caretaker and has full authority from the proprietor (Mukisa Racheal, the Plaintiff in the main suit) to deal with a plot of land comprised in Busiro Block 415 Plot 215 land situate at Bwerenga Kawuku, Wakiso District. While acting upon that representation, the Applicant entered into a verbal agreement with the Respondent to excavate soil/murram from the Plot of land comprised in Busiro Block 415 Plot 215. This was done at a total consideration of UGX 1,670,000 (Uganda Shillings One Million Six Hundred Seventy Thousand and Seventy Shillings). Pursuant to that arrangement, the Applicant excavated the soil/murram while levelling the same. The soil was later taken to Bugiri where the Applicant had a project of construction at Kids of Africa. However, after accomplishing the above developments, the proprietor of the suit land approached the Applicant and maintained that he had trespassed on her land. She sued the Applicant vide High Court Civil SuitNo. 223 of 2014 Mukisa Racheal vs. Ssenfuka Isaac & Another. The Plaintiff’s claim in the head suit is among others for general damages, exemplary damages, and compensation for trespass. Mr. Ssenfuka further deponed that, pursuant to the impending suit, he approached the Respondent to compensate him. However, instead of doing so, the Respondent asserted that he had all the authority and instructions to collect the monies on behalf of Mukisa Racheal, the proprietor and the Plaintiff in the main suit.

Resolution

Having considered the submissions of Counsel for the Applicant, the law upon which this Application was brought and the documents in support thereof, I am not satisfied that the facts as presented merit issuance of a  third party notice as prayed for by the Applicant.

The Application was brought under Order 1 Rule 14 of the Civil Procedure Rules. Order 1 Rule 14(1) which states that “where a defendant claims to be entitled to contribution or indemnity over against any person not a party to the suit, he or she may, by leave of the Court, issues a notice (hereafter called a “third party notice)” to that effect.

I have addressed myself to the authorities that were cited by Counsel for the Applicant in his written submissions, including the  case of Sango Bay Estates vs. Dresdner Bank [1971] EA 307 where it was stated that the general scope of third party procedure is to deal with cases in which, all the disputes arising out of a transaction as between the Plaintiff and the Defendant, and between the Defendant and a Third Party can be tried and settled in the same action. Similarly the case of Yafesi Walusimbi vs. Attorney General [1959] EA 223 where it was held that in order for a Third Party to 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 the same. Court also held in the Yafesi Walusimbi case that the Defendant must have against the Third Party a direct right of indemnity, which right must, generally, if not always, arise from a contract express or       implied.

Therefore, in view of the facts before me,  the issue is whether Fred Kakooza, the Respondent herein, is a person  who qualifies to be joined as a third party in High Court Civil Suit No. 223 of 2014 Mukisa Racheal vs. Ssenfuka Isaac & Another. The Plaintiff’s claim against the Applicant therein in the head suit is for trespass; compensation; general damages and costs of the suit.

Meanwhile, the Applicant contends that the Respondent, Fred Kakooza, intimated and represented to him that he was  the caretaker and had full authority from the proprietor to deal the plot of land comprised in Busiro Block 415 Plot 215, land situate at Bwerenga Kawuku, Wakiso District. This was the basis upon which the transaction between the Applicant and the Respondent was established.

I have paid due consideration to the submissions of the Applicant’s Counsel to wit, that the question of indemnity by the Respondent to the Applicant is one which can only be addressed by the said Fred Kakooza, the Respondent being a party to the proceedings as a third party. The Applicant’s Counsel contends that by joining the Respondent as a party to the main suit, it will enable Court to determine all the questions of controversy in the main suit.

It is important  to note that the issuance of a third party notice is applicable in proceedings where there exists someone from whom the Defendant, in case he is himself found liable in an action, is entitled to recover some portion of the amount of money which he would have to pay to the Plaintiff known as contribution or will be entitled to be wholly reimbursed or entitled to an indemnity. Hence, in accordance with the facts, the cause of action in High Court Civil Suit No. 223 of 2014 Mukisa Racheal vs. Ssenfuka Isaac & Another is different from the Applicant’s claim against the Respondent herein. In the High Court case of Lake Victoria Bottling Co. & 2 Others vs. Crown Bottling Ltd Civil Suit No. 220 of 1992 reported in [1994] KALR 572 Byamugisha, J. while handling an Application of this nature, held that before Court can exercise its discretion to issue Third Party notice, it has to evaluate the allegations of the Plaintiff in terms of his legal claim to the relief he is seeking. The Court also has to evaluate the Defendant’s allegations against the Third Party. Therefore, Court has to be satisfied that the substance of each claim is the same and that there is a linkage between all the claims before issuing the notice.

With due respect, and contrary to the submissions of Counsel for the Applicant, I do not see any link between the claim in High Court Civil Suit No. 223 of 2014 Mukisa Racheal vs. Ssenfuka Isaac & Another, and the Applicant’s claim against the Respondent herein. The Applicant has not demonstrated that he would have a direct contribution from the Respondent. In my opinion, the Applicant should have provided more evidence to show that the Respondent is a necessary party. For instance, the Applicant would have attached documentary evidence to show that the Plaintiff had assigned the Respondent as her agent, appointee or Donee or some proof that the Plaintiff indeed gave such authority to the Respondent. In the circumstances, the Applicant should endeavour to bring the Respondent as his main witness.

FOR THE FOREGOING REASONS,

The Application is hereby DENIED. I make no order as to COSTS.

Signed:……………………………………………………………

HON. LADY JUSTICE ELIZABETH IBANDA NAHAMYA

J U D G E

17^th APRIL 2015.