Wakilii

Walimu Cooperative Savings and Credit Union vs Okumu Benjamin and Anor (Miscellaneous Civil Application No. 101 of 2022)

High Court · [2022] UGHC 28 · 2022 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to add a third defendant to Civil Suit No. 029 of 2019
Decision
Application allowed. Kitgum High School Co-operative Savings and Credit Society Ltd to be added as third defendant. Applicant to file amended plaint within 15 days.

Observed later treatment

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Holding

The High Court granted the application to add Kitgum High School Co-Operative Savings and Credit Society Limited as a third defendant to Civil Suit No. 029 of 2019. The court held that the intended defendant ought to have been joined at the outset given that the loan agreements on record showed the SACCO as a party executing the agreements with the applicant, with the present respondents named as SACCO officials. The omission was attributed to the former counsel's oversight. The court found that the SACCO's presence was necessary to effectually and completely resolve all issues in the main suit, particularly questions of who the parties to the loan agreement were and whether there was breach. The addition would avoid multiplicity of suits without introducing a new cause of action.

Outcome

Application allowed. Kitgum High School Co-operative Savings and Credit Society Ltd to be added as third defendant. Applicant to file amended plaint within 15 days.

Facts

Walimu Cooperative Savings and Credit Union filed Civil Suit No. 029 of 2019 against Okumu Benjamin and Komakech Amos Paito seeking to recover UGX 89,834,690 arising from alleged loan defaults. The loan agreements attached to the plaint showed that Kitgum High School Co-Operative Savings and Credit Society Limited executed the agreements with the applicant, with the two respondents named as Chairman and Treasurer of the SACCO respectively. The applicant's former counsel, Rwabwogo & Co. Advocates, omitted to include the SACCO as a defendant when drafting the plaint. The respondents, in their defence, asserted that the loans were advanced to individual teachers through the SACCO, not to them personally, and that they were wrongly sued. The applicant sought to add the SACCO as a third defendant to properly resolve all questions in controversy.

Issues

  1. Whether the applicant has satisfied the requirements of the law for adding a defendant to a suit?
  2. Whether in the circumstances the court ought to add Kitgum High School Co-Operative Savings and Credit Society Limited as the third defendant in Civil Suit No. 029 of 2019, and on what terms?

Orders

  • The applicant is allowed to add and implead Kitgum High School Co-operative Savings and Credit Society Ltd (or whatever name will most accurately describe her) as a Defendant in Civil Suit No. 29 of 2019.
  • The Applicant shall file an amended plaint to include the said person within 15 days from the date of this ruling, and shall serve all the Defendants within 7 days from the date of filing the amended plaint.
  • The Respondents herein who are defendants to the suit may file an amended Written Statement of Defence to the amended plaint within 15 days from the date of service of the amended plaint upon them or their counsel on record.
  • Kitgum High School Co-operative Savings and Credit Society Ltd (or whatever name she might be called) may file written statement of defense in the matter within 15 days from the date of service of summons and the plaint upon her, and in accordance with the Civil Procedure Rules.
  • The applicant shall not introduce a new cause of action in the amended plaint and shall restrict its action to the alleged breach of the loan agreements, and shall not change the nature of the suit which is by ordinary plaint.
  • The applicant shall bear its own costs of this application, given that the Respondents did not contribute to the applicant's situation, but the applicant's former counsel.

Rules and key headnotes

Civil Procedure — Joinder of Parties — Order 1 rule 10(2) CPR — Necessary Party vs Proper Party
Under Order 1 rule 10(2) of the Civil Procedure Rules, a necessary party is one without whom no order can be effectively made and against whom there must be a right to some relief in respect of the matter involved in the suit. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceedings. A party may be both a necessary and proper party depending on the circumstances of the case. The provision is disjunctive and the person sought to be added need not be both.
Civil Procedure — Joinder of Parties — Addition of Defendant — Person Who Ought to Have Been Joined
Where a person ought to have been joined as a defendant at the time the suit was filed but was omitted through counsel's oversight, and where the documentary evidence attached to the plaint shows that person as a party to the transaction in dispute, the court may exercise its discretion under Order 1 rule 10(2) CPR to add that person as a defendant, provided their presence is necessary to effectually and completely adjudicate upon and settle all questions involved in the suit.
Civil Procedure — Joinder of Parties — Mistake of Counsel — Substantive Justice
Mistake of counsel is usually excusable provided the client did not contribute to the making of the mistake. The administration of justice normally requires that the substance of all disputes should be investigated and decided on their merits, and errors and lapses should not necessarily debar a litigant from the pursuit of their rights. Courts should administer substantive justice without undue regard to technicalities in accordance with Article 126(2)(e) of the Constitution of Uganda, 1995.

Legislation cited (7)

Cases cited (20)

  • Odd Jobs v Mubia [1970] EA 476
  • Makerere University v St. Mark Education Institute (High Court Civil Suit No. 378 of 1993)
  • Byamukama Edson v Makerere University (Miscellaneous Application No. 312 of 2008)
  • Kololo Curing Co. Ltd v West Mengo Co-op Union [1981] HCB 29
  • Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1991] EA 55
  • Electoral Commission v Sebuliba Mutumba Richard and 2 Others (Miscellaneous Application No. 30 of 2012)
  • Samson Sempesa v P.K Sengendo (Miscellaneous Application No. 577 of 2013)
  • M/s United India Insurance Co. Ltd Vs. Sharda Adyanathya, AIR 1998 Kant 141 (FB)
  • Ayigihugu & Co. Advocates v Kidza [1985] HCB 46
  • Bahemuka v Anywar and Another [1987] HCB 71
  • Fatuma Osman Hussein v Mahendra Umadbhaipatel [1995] KALR 67
  • Major Ronald Kakooza Mutale v Attorney General (Miscellaneous Application No. 665 of 2003)
  • Mahomed Badsha V. Nicol (1879) 4 Cal 355
  • Raleigh V. Goschen (1898) 1 Ch. 73
  • Kololo Curing Co. Ltd v West Mengo Co-op Union Ltd [1981] HCB 60
  • Reliable African Insurance Co. Ltd v NIC [1979] HCB 59
  • Matugga Coffee Growers v Lwemwedde Coffee Factory Limited [1988-1990] HCB 116
  • Haji Nurdin Matovu v Ben Kiwanuka (Civil Application No. 12 of 1991)
  • Essaji v Solanki [1968] EA 218
  • Kananura Mielvin Consultant Engineer v Kabanda [1992] III KALR 61

Full judgment

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Walimu Cooperative Savings and Credit Union vs Okumu Benjamin and Anor (Miscellaneous Civil Application No. 101 of 2022) [2022] UGHC 28 (30 September 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.