Wakilii

Gakou and Brothers Enterprises Ltd v SGS Uganda Ltd (HCT-00-CC-MA 431 of 2005)

High Court · [2005] UGCOMMC 42 · 2005 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to add or substitute a party to the suit arising from head suit HCT-00-CC-CS-0373-2005
Decision
Application to add or substitute party dismissed with costs to respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that Order 1 Rule 10(2) of the Civil Procedure Rules does not extend to substitution of parties where a defendant claims to have been wrongly sued. The rule addresses misjoinder and non-joinder of parties. A plaintiff has the right to elect which person shall be the defendant and cannot be compelled to sue a particular person except in cases of necessity. The applicant did not establish that the presence of the proposed party was necessary to effectually resolve the dispute.

Outcome

Application to add or substitute party dismissed with costs to respondent

Facts

The applicant, Gakou & Brothers Enterprises Ltd, was the defendant in a head suit brought by SGS Uganda Ltd. The applicant applied to add or substitute Mushagalusa Jerome as the defendant, claiming that the plaintiff had wrongly sued the applicant and that Mushagalusa Jerome was the actual owner of the mineral cargo which was the subject matter of the suit. The applicant's managing director alleged that he had merely introduced Mushagalusa Jerome to the respondent, after which Mushagalusa Jerome dealt directly with the respondent. The applicant claimed a conspiracy existed between Mushagalusa Jerome and the respondent to make the applicant liable for their transactions. The respondent opposed the application without filing an affidavit in reply.

Issues

  1. Whether the applicant can add or substitute Mushagalusa Jerome as the defendant under Order 1 Rule 10(2) of the Civil Procedure Rules.
  2. Whether the presence of Mushagalusa Jerome is necessary to enable the court to effectually and completely adjudicate upon all questions involved in the suit.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Parties — Substitution of Parties — Scope of Order 1 Rule 10(2)
Order 1 Rule 10(2) of the Civil Procedure Rules addresses misjoinder and non-joinder of parties and does not extend to the substitution of parties where a defendant claims to have been wrongly or unjustifiably sued by the plaintiff.
Civil Procedure — Parties — Plaintiff's Right to Elect Defendant
A plaintiff, being dominus litis, has the right to elect which person shall be the defendant in the suit and cannot be compelled to sue a particular person as defendant except in cases of necessity.
Civil Procedure — Parties — Addition of Parties Under Order 1 Rule 10(2) — Test for Necessity
Under Order 1 Rule 10(2) of the Civil Procedure Rules, a party may be added only if their presence is necessary to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit.

Legislation cited (1)

  • Civil Procedure Rules O.1 r.10(2)

Cases cited (5)

  • Kololo Curing Co Ltd v West Mengo Co-operative Union Ltd [1981] HCB 60
  • Daphne Parry v Murray Alexander Carson [1962] EA 515
  • Denis Kimuli Batemuka v Sarah Biribonwa Anywar [1987] HCB 71
  • Fernandes v Kara Arjan and Sons [1961] EA 693
  • Salim Jamal and Others v Uganda Oxygen Ltd and Others (Supreme Court Civil Appeal No. 64 of 1995)

Full judgment

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

Gakou and Brothers Enterprises Ltd v SGS Uganda Ltd (HCT-00-CC-MA 431 of 2005) [2005] UGCommC 42 (14 July 2005)
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.