Wakilii

ATC (U) Limited v Bitama and Others (Miscellaneous Application No 111 of 2022)

High Court · [2023] UGHC 5 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ex parte application for leave to issue third party notice arising from civil suit for trespass
Decision
Leave granted to issue third party notice; first respondent to be added as defendant to main suit

Observed later treatment

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Holding

The High Court granted leave to the applicant telecommunications company to issue a third party notice against the first respondent, who had executed a license agreement containing indemnity clauses. The court held that where a defendant claims indemnity under contract against a person not party to the suit, and the subject matter between defendant and third party is the same as between plaintiff and defendant, leave to issue a third party notice should be granted under Order 1 rule 14 of the Civil Procedure Rules.

Outcome

Leave granted to issue third party notice; first respondent to be added as defendant to main suit

Facts

ATC (U) Limited, a telecommunications company, was sued for trespass on land in Civil Suit No. 06 of 2022 by parties claiming ownership of land on which the applicant operated a telecommunications mast. The applicant had acquired the mast and interests from Eaton Towers Uganda Limited, which had executed a fifteen-year license agreement with the first respondent, Rashid Bitama, in December 2021. Under the license agreement, the first respondent covenanted to indemnify the licensee against all claims arising from use of the licensed area. The applicant sought leave to issue a third party notice against the first respondent to claim indemnity for any loss and costs in the main suit.

Issues

  1. Whether a third party notice should be issued against the 1st Respondent.
  2. Whether the Applicant has sufficient grounds to join the Respondent as a third party.
  3. Whether the subject matter between the Applicant and the Respondent is the same as the subject matter between the plaintiff and the defendant.
  4. Whether the Applicant claims indemnity or contribution from the Respondent.
  5. Whether the plaintiff shall suffer any prejudice if the application is granted.

Orders

  • Leave is granted to the Applicant to issue a Third Party Notice to the 1st Respondent (Rashid Bitama) in Civil Suit No. 06 of 2022.
  • The 1st Respondent (Rashid Bitama) shall be added as a defendant to the main suit.
  • The plaintiffs are directed to amend the plaint to include the 1st Respondent as a defendant within 10 days from the date of delivery of this ruling.
  • The costs of taking out this application shall be borne by the Applicant.

Rules and key headnotes

Civil Procedure — Third Party Procedure — Requirements for Issuance of Third Party Notice
Under Order 1 rule 14(1) of the Civil Procedure Rules, where a defendant claims to be entitled to contribution or indemnity against any person not a party to a suit, the court may grant leave to issue a third party notice where the subject matter between the third party and the defendant is the same as between the plaintiff and the defendant, and the original cause of action is the same.
Civil Procedure — Third Party Procedure — Grounds for Granting Leave
Before a third party notice can be issued, the applicant must prove: (a) sufficient grounds to join the respondent as a third party; (b) the subject matter between applicant and respondent is the same as between plaintiff and defendant; (c) the applicant claims indemnity or contribution from the respondent; (d) the plaintiff shall not suffer prejudice if the application is granted; and (e) it is in the interest of justice that the suit is heard on its merits.
Contract Law — Indemnity — Right to Indemnity Under License Agreement
A right to indemnity generally arises from contract and exists where the relationship between the parties is such that either in law or in equity there is an obligation upon one party to indemnify the other. Where a licensor covenants to indemnify the licensee against all claims arising from use of licensed land, the licensee is entitled to claim indemnity for third party claims relating to that land.

Legislation cited (2)

Cases cited (4)

  • NBS Television Ltd v Uganda Broadcasting Corporation (Miscellaneous Application No. 421 of 2012)
  • Easter Shipping Co v Quah Beng Kee [1924] AC 177
  • Sango Bay Estates v Dresdner Bank [1971] EA 307
  • Semanda Isima Moses v Airtel Uganda Ltd and Another (Miscellaneous Application No. 996 of 2020)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

ATC (U) Limited v Bitama and Others (Miscellaneous Application No 111 of 2022) 2023 UGHC 5 (9 January 2023)
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.