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Nekuusa and Another v Zimula and Another (Miscellaneous Application No. 368 of 2020)

Constitutional Court · [2020] UGCC 17 · 2020 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application under Order 1 rule 10(2) CPR to add two parties as defendants in a pending civil suit and originating summons
Decision
Application to add the respondents as defendants refused; costs awarded to the respondents and ancillary directions (forensic examination, witness summons, postal records) issued for resolution of the main suits

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Holding

The court refused to add the respondents — Stephen Zimula and MMAKS Advocates, counsel on record for the plaintiff bank — as defendants under Order 1 rule 10(2) CPR. They were neither necessary nor proper parties: the issue in the main suits was whether the applicants were indebted to the bank, which could be determined without them, and neither the bank nor the applicants held a cause of action against them. The court held that joinder is discretionary, not a defendant's right, and that adding plaintiff's counsel as adverse defendants in the same matter would be a legal absurdity and would offend the advocate's duty of confidentiality under SI 267-2 and section 125 of the Evidence Act. The application failed.

Facts

Diamond Trust Bank sued the applicants, Francis and Stella Nekuusa, in Civil Suit No. 254 of 2017 and Originating Summons No. 2 of 2018 to recover about Shs 10 billion said to be outstanding on loans. The applicants applied to add Stephen Zimula (a partner in MMAKS Advocates) and MMAKS Advocates — the bank's lawyers on record — as defendants, alleging that the respondents forged documents, including a letter of 13 September 2016 acknowledging indebtedness, and other notices, to procure an unlawful sale of the applicants' mortgage securities. The applicants wished to cross-examine the respondents on the authenticity of these documents and on how their bank account information was obtained. The respondents opposed the application as brought in bad faith to delay trial, denied the forgery allegations, and contended the issues were res judicata. The intended sale had been injuncted and never took place.

Issues

  1. Whether the respondents, who are counsel on record for the plaintiff bank, can be added as defendants in Civil Suit No. 254 of 2017 and Originating Summons No. 2 of 2018 under Order 1 rule 10(2) of the Civil Procedure Rules.
  2. Whether adding the plaintiff's advocates as defendants so they may be cross-examined on client documents is permissible given the restraints on disclosure of client information under the Advocates (Professional Conduct) Regulations and the Evidence Act.

Orders

  • The application to add the respondents as defendants is refused and the application fails.
  • A forensic examination of the original letter dated 13 September 2016 to be carried out by the Government handwriting expert to determine whether the signature is that of the applicant and whether it is scanned or original writing.
  • The costs of the forensic examination and the resultant report to be borne by both parties, the unsuccessful party in the main suits to recompense the successful party upon final determination.
  • Witness summons to issue for Messrs Kavuma Kabenge Advocates to be examined on their possible role in the letters dated 20 October 2016 and 2 February 2017 and any other related issues.
  • The General Post Master/Executive Director of Posta Uganda to furnish particulars of the registered operators of Postal Office Boxes No. 31101 and 6557 as at January 2016 to May 2017.
  • Costs of the application awarded to the respondents.

Key headnotes

Civil Procedure — Joinder of Parties — Order 1 rule 10(2) CPR — Necessary and Proper Parties
A person may be added as a defendant under Order 1 rule 10(2) of the Civil Procedure Rules only where he ought to have been joined or where his presence is necessary to enable the court to adjudicate completely and effectively on all questions involved in the suit; a party without whom the suit can be effectively and completely determined should not be joined.
Civil Procedure — Joinder of Parties — Discretion of the Court
A defendant is not entitled as of right to have another person added as a co-defendant; the addition of a co-defendant lies in the discretion of the court, to be exercised judiciously upon the facts and circumstances of the particular case and the imperative of dispensing substantive justice with completeness and finality.
Civil Procedure — Joinder of Parties — Legal Interest of Intended Party
A person should not be joined as a defendant unless he is directly or legally interested in the answers to the questions involved in the case, that is, where the outcome may affect him legally by curtailing his rights; a party against whom neither plaintiff nor defendant has a cause of action, and whose legal rights the outcome cannot affect, is neither a necessary nor a proper party.
Evidence — Advocate-Client Privilege — Joinder of Plaintiff's Counsel as Defendant
Counsel on record for a plaintiff cannot be added as a defendant in the same matter in order to be cross-examined on documents and conduct connected to the client's affairs, as positioning an advocate as an adverse litigant against the very party they represent would be a legal absurdity and would offend the restraints on disclosure of client information under regulation 7 of the Advocates (Professional Conduct) Regulations and section 125 of the Evidence Act.

Legislation cited (3)

  • Civil Procedure Rules Order 1 rule 10(2)
  • Advocates (Professional Conduct) Regulations SI 267-2 reg.7
  • Evidence Act s.125

Cases cited (5)

  • Sarvinder Singh V Dailip Singh 1996 (6) Scale 59
  • NC Garai V Matru Bharder, AIR 1974 Cal 358
  • Amon v Raphael Tuck & Sons Ltd [1956] 1 All ER 273
  • Gaura Naik V Arjun Charan Dash, AIR 1996 Ori 180
  • Noris V Beazley (1874-80) All ER 774
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.