Wakilii

Vijay & Another v Somani (Miscellaneous Application 535 of 2024)

High Court · [2024] UGCOMMC 173 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to add a party and amend pleadings in ongoing civil suit for breach of contract
Decision
Application granted with leave to add second defendant and amend pleadings; matter to proceed in the main suit with amended parties

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that Multi Consult Designs Limited should be added as the second defendant to enable complete adjudication of whether the construction agreement was executed in the respondent's personal capacity or on behalf of the company. The respondent's witness statement alleged he acted as company director, not personally, making the company's presence necessary to settle all questions in the suit. A preliminary objection that the affidavit in reply was hearsay was overruled, as the deponent advocate testified on formal matters within the firm's knowledge.

Outcome

Application granted with leave to add second defendant and amend pleadings; matter to proceed in the main suit with amended parties

Facts

The Applicants instituted Civil Suit No. 105 of 2021 against the Respondent in his personal capacity to recover USD 194,698 arising from breach of a construction contract. In his witness statement, the Respondent stated he engaged the 1st Applicant in his capacity as director of Multi Consult Designs Limited, not personally. He stated the property owner was Multi Consult Designs Limited and payments were to be made directly by that company. The Respondent claimed he never entered into contractual arrangements personally but that dealings were between the 1st Applicant and Multi Consult Designs Limited. The Applicants sought leave to add Multi Consult Designs Limited as the 2nd Defendant to enable the court to adjudicate whether the contract was executed personally or on behalf of the company.

Issues

  1. Whether leave should be granted to allow the Applicants to add Multi Consult Designs Limited as a Defendant in Civil Suit No. 105 of 2021?
  2. What remedies are available to the parties?

Orders

  • Leave granted to the Applicants to add Multi Consult Designs Limited as the 2nd Defendant to Civil Suit No. 105 of 2021.
  • Applicants granted leave to amend the pleadings accordingly.
  • Applicants to serve the Defendants with the amended plaint within seven (7) days from the date of this Ruling.
  • The added Defendant to file and serve its Written Statement of Defence within fifteen (15) days after receipt of the amended plaint.
  • Rejoinder to be filed within seven (7) days after receipt of the Written Statement of Defence.
  • Costs of this application to be in the cause.

Rules and key headnotes

Civil Procedure — Joinder of Parties — Order 1 Rule 10(2) — Addition of Defendant — Test for Addition
Under Order 1 Rule 10(2) of the Civil Procedure Rules, a party may be joined in a suit not because there is a cause of action against that party, but because the party's presence is necessary to enable the court to effectually and completely adjudicate upon and settle all questions involved in the cause or matter.
Civil Procedure — Joinder of Parties — Grounds for Addition — Defence Cannot Be Set Up Unless Party Joined
A person qualifies to be joined as a co-defendant where it is shown that the defendant cannot effectually set up the defence he desires to set up unless that person is joined, or unless the order to be made is to bind that person.
Civil Procedure — Joinder of Parties — Addition to Avoid Multiplicity of Suits — Interest of Justice
Where a defendant alleges that liability lies with a third party and that he acted on behalf of that party, the court should add that party as a defendant in the interest of avoiding multiplicity of suits and effectually adjudicating upon all questions involved in the suit.
Evidence — Affidavit Evidence — Advocate as Deponent — Regulation 9 Advocates (Professional Conduct) Regulations
Regulation 9 of the Advocates (Professional Conduct) Regulations does not bar an advocate from swearing an affidavit on formal or non-contentious matters within the advocate's knowledge, and does not prevent an advocate from giving evidence on behalf of a client, but rather bars an advocate from appearing before court on behalf of a client when the advocate is a witness or potential witness in a contentious matter.
Civil Procedure — Preliminary Objections — Nature — Pure Point of Law
A preliminary objection is in the nature of what used to be a demurrer and raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.

Legislation cited (10)

Cases cited (12)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696
  • Uganda Development Bank v Kasirye, Byaruhanga and Co. Advocates (Supreme Court Civil Appeal No. 35 of 1994)
  • Mbarara Municipal Council v Jetha Brothers Ltd (Miscellaneous Application No. 10 of 2021)
  • Electro-Maxx Uganda Ltd v Oryx Oil Uganda Ltd (High Court Miscellaneous Application No. 251 of 2020)
  • Gaso Transport Services (Bus) Ltd v Martin Adala Obene (Supreme Court Civil Appeal No. 4 of 1994)
  • Assa Abloy (U) Ltd v John Mboizi (Miscellaneous Application No. 784 of 2021)
  • Hon. Gerald Kafureeka Karuhanga and Another v Attorney General and Others (Miscellaneous Cause No. 60 of 2015)
  • Abdulrahman Elamin v Dhabi Group and Others (Civil Appeal No. 215 of 2013)
  • Kololo Curing Co. Ltd v West Mengo Co-op Union Ltd [1981] HCB 60
  • Yahaya Kariisa v Attorney General & Anor (Supreme Court Civil Appeal No. 7 of 1994)
  • Departed Asians Property Custodian Board v Jaffer Brothers Ltd (Supreme Court Civil Appeal No. 9 of 1998)
  • Amon v Raphael Tuck & Sons Ltd [1956] 1 All ER

Full judgment

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Vijay & Another v Somani (Miscellaneous Application 535 of 2024) [2024] UGCommC 173 (26 April 2024)
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.