Wakilii

Turinawe v Turyahabwe (Miscellaneous Application 308 of 2022)

High Court · [2022] UGHC 140 · 2022 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 pending land suit
Decision
Applicant granted leave to join respondent as third party to the main suit

Observed later treatment

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Holding

The High Court granted the applicant leave to issue a third-party notice against the respondent who had sold him land that was later discovered to be encumbered by a mortgage. The court held that where a defendant purchased land from a vendor who failed to disclose an existing mortgage, and the defendant is subsequently sued by a third party to whom he resold the land, the defendant is entitled to indemnity from the original vendor. The court found that the vendor had a duty to sell land free from encumbrances and that the subject matter and cause of action between the defendant and the third party were the same as in the main suit.

Outcome

Applicant granted leave to join respondent as third party to the main suit

Facts

The applicant purchased land from the respondent Turyahabwe Swaib. Before purchasing, the applicant conducted due diligence through the LC1 Chairperson of Lugazi Cell who confirmed the land was free from encumbrances and stamped the sale agreement. The applicant paid the respondent in full and subsequently sold the land to Kainamula Gloria. Gloria later filed suit against the applicant for breach of contract after discovering the land was encumbered by a mortgage in favour of FINCA bank, which the respondent had created before selling to the applicant. FINCA bank was evicting Gloria. The applicant sought leave to issue a third-party notice against the respondent in the main suit filed by Gloria, claiming entitlement to indemnity from the respondent.

Issues

  1. Whether the applicant has sufficient grounds to join the respondent as a third party to the main suit.
  2. Whether the subject matter between the applicant and respondent is the same as the subject matter between the plaintiff and defendant in the main suit.
  3. Whether the applicant is entitled to indemnity from the respondent.
  4. Whether the plaintiff in the main suit will suffer prejudice if the application is granted.

Orders

  • Application granted.
  • Applicant granted leave to issue a third-party notice together with a copy of the plaint upon the respondent.
  • Service to be effected within fourteen days from the date of the ruling.
  • Costs of the application to be in the cause.

Rules and key headnotes

Civil Procedure — Third-Party Procedure — Requirements for Leave to Issue Third-Party Notice
For a defendant to obtain leave to issue a third-party notice under Order 1 rule 14 of the Civil Procedure Rules, the defendant must satisfy the court that: (1) there are sufficient grounds to join the proposed third party; (2) the subject matter between the defendant and the third party is the same as the subject matter between the plaintiff and defendant; (3) the defendant claims indemnity or contribution from the third party; (4) the plaintiff will not suffer prejudice; and (5) it is in the interest of justice.
Civil Procedure — Third-Party Procedure — Scope of Order 1 Rule 14
Order 1 rule 14 of the Civil Procedure Rules is limited to claims for contribution or damages from a third party that would otherwise be a stranger to the suit, and the subject matter as between the defendant and the third party must be the same as that between the defendant and the plaintiff.
Contract Law — Indemnity — Implied Duty to Indemnify
A right to indemnity need not arise from express contract but may arise where the relation between the parties is such that either in law or in equity there is an obligation upon one party to indemnify the other, including where the state of circumstances is such that the law attaches a legal or equitable duty to indemnify arising from an assumed promise by a person to do that which, under the circumstances, he ought to do.
Land & Property — Sale of Land — Vendor's Duty to Disclose Encumbrances
Where a vendor sells land to a purchaser who conducts due diligence and is satisfied the land is free from encumbrances, the vendor has a duty to sell land free from any encumbrances, and in the event of undisclosed encumbrances, the purchaser is entitled to indemnity from the vendor against third-party claims arising from such encumbrances.

Legislation cited (1)

Cases cited (4)

  • Yafesi Walusimbi v Attorney General [1959] EA 233
  • NBS Television Limited v Uganda Broadcasting Corporation (Miscellaneous Application No. 421 of 2012)
  • Eastern Shipping Co v Quah Beng Kee [1924] AC 177
  • Edward Kironde Kaggwa v L Costaperaria [1963] 1 EA 213

Full judgment

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

Turinawe v Turyahabwe (Miscellaneous Application 308 of 2022) [2022] UGHC 140 (9 December 2022)
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.