Wakilii

Salini Construttori SPA v Attorney General & Anor (Civil Suit No. 979 of 2016)

High Court · [2019] UGCOMMC 17 · 2019 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Preliminary objection by 2nd Defendant challenging whether amended plaint discloses a cause of action
Decision
Preliminary objection dismissed; matter to proceed to scheduling and trial on the merits

Observed later treatment

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Holding

Held that although the 2nd Defendant acted as supervisor and agent of the 1st Defendant, its presence was necessary for the court to effectively adjudicate the dispute. The contract imposed continuing obligations on the 2nd Defendant, including verification of amounts due and issuance of the Final Statement of Account. Under Order 1 Rule 3 of the Civil Procedure Rules, parties whose presence is necessary to completely settle all questions involved should be joined. The preliminary objection was dismissed.

Outcome

Preliminary objection dismissed; matter to proceed to scheduling and trial on the merits

Facts

The Plaintiff contractor entered into a contract dated 30 April 2004 with the 1st Defendant for construction of the Kampala Northern Bypass. The 2nd Defendant's predecessor supervised the works. The Plaintiff completed the works on 30 September 2009 and received a Certificate of Acceptance. A Settlement Deed was executed on 2 June 2015 representing full and final settlement. The Final Acceptance Certificate was issued on 19 June 2015. The Plaintiff submitted a Draft Final Settlement of Account but the 2nd Defendant delayed in responding and did not issue the Final Statement of Account within the contractual 90-day period. The Plaintiff claimed this delay caused it to maintain performance bonds and incur additional expenses. The Plaintiff sued both Defendants for breach of contract seeking payment of UGX 11,338,362,079 and Euros 2,268,587.45 plus damages. The 2nd Defendant raised a preliminary objection contending it was not privy to the contract and acted only as agent of the disclosed principal.

Issues

  1. Whether the amended plaint discloses a cause of action against the 2nd Defendant.
  2. Whether the 2nd Defendant was privy to the construction contract between the Plaintiff and the 1st Defendant.
  3. Whether the 2nd Defendant, as supervisor, was an agent of a disclosed principal and therefore not liable for breach of contract.
  4. Whether the 2nd Defendant's presence is necessary to enable the court to effectively adjudicate upon and settle all questions involved in the matter.

Orders

  • Preliminary objection dismissed.
  • Costs to abide the outcome of the main suit.

Rules and key headnotes

Civil Procedure — Preliminary Objections — Test for Whether Plaint Discloses Cause of Action
The question of whether a plaint discloses a cause of action is determined upon perusal of the plaint alone and any attachments to it, and on the assumption that the averments in the plaint are true. The essential elements are that the plaintiff enjoyed a right, the right has been violated, and the defendant is liable.
Contract Law — Privity of Contract — Agent of Disclosed Principal
A contract cannot confer rights or impose obligations arising under it on any person except the parties to the contract. Where an agent acts for a disclosed principal, the agent is not ordinarily liable under the contract.
Contract Law — Construction Contracts — Continuing Obligations of Supervisor
Where a construction contract imposes continuing obligations on a supervisor, including verification of amounts due under the contract and issuance of final statements of account, those obligations may constitute sufficient involvement to warrant joinder of the supervisor as a necessary party, even where the supervisor acts as agent of a disclosed principal.
Civil Procedure — Joinder of Parties — Necessary Parties Under Order 1 Rule 3 CPR
Under Order 1 Rule 3 of the Civil Procedure Rules, all persons against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist should be joined as defendants. A party may be joined not because there is a cause of action against it, but because that party's presence is necessary to enable the court to effectively and completely adjudicate upon and settle all questions involved in the cause or matter.

Legislation cited (1)

Cases cited (4)

  • Attorney General v Oluoch (1972) EA 392
  • Auto Garage v Motokov No. 3 (1971) EA 514
  • Dunlop Pneumatic Tyre Co. Limited v Selfridge & Co. [1915] AC 847
  • Amon v Raphael Tuck and Sons Limited [1956] ALLER 273

Full judgment

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

Salini Construttori SPA v Attorney General & Anor (Civil Suit No. 979 of 2016) [2019] UGCommC 17 (8 July 2019)
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.