IN THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
COMMERCIAL COURT DIVISION
MISC. APPL. NO. 73 OF 2007
(Arising from HCT-00-CC-CS-1026-2004)
THE INSPECTORATE OF GOVERNMENT …..…… APPLICANT
BLESSED CONSTRUCTORS LTD.
JINJA DISTRICT LOCAL GOVERNMENT … RESPONDENTS
BEFORE: JUSTICE LAMECK N. MUKASA
(ii) The costs of this application be in the cause.
The grounds for the application are that:-
2. The joinder of the Inspectorate of Government as a 2nd defendant is absolutely necessary in order to enable this Honourable Court to effectually and completely adjudicate upon and settle all the questions involved in the main suit.
3. Joining the Applicant as a 2nd defendant shall not prejudice or curtail the plaintiff’s legal rights.
In the main suit the first Respondent, Blessed Constructions Ltd, is claiming against the second Respondent, Jinja District Local Government, for payment of shs93, 115,000/= for Construction work done on the 2nd Respondent’s instructions by the first Respondent in various schools under the 2nd Respondent’s administration and for general and exemplary damages for breach of contract and costs of the suit. In the plaint the first Respondent claims that the value of the work completed at the various school sites was in the region of shs93, 115,000/=. That while the first Respondent was proceeding with the work, it was instructed by the 2nd Respondent to stop the work which the 1st Respondent contends was in breach of the contract. Thus the suit.
In the plaint it is further stated:-
The first Respondent opposed the application. It filed an affidavit deponed to by its Managing Director Geoffrey Waswa where he stated that the application is merely a complaint by the Applicant against the 2nd Respondent for alleged irregularities by the 2nd Respondent in the course of its activities, which alleged irregularities are a matter between the second Respondent and the Applicant which would warrant an action between the two. Secondly, that the first Respondent’s claim in the main suit is based on breach by the 2nd Respondent of a contract to which the Applicant is not privy. Thirdly that the Applicant can be called by the 2nd Respondent as a witness in the main suit if it so wished or as a third party if the 2nd Respondent is entitled to an indemnity or compensation from the Applicant.
This application is brought under Order 1 rule 10 (2) of the Civil Procedure Rules which provides:-
Mr. Noah Sekabojja, Counsel for the 1st Respondent submitted that Order 1 rule 10 (2) CPR does not cover a situation where a party just decides, to apply to be joined as a party , most especially where he applies to be made a defendant when the plaintiff has no claim against him. Counsel further argued that rule 4 would require an amendment of the plaint, in the event the application is allowed, whereby the plaint so amended would be required to disclose a cause of action against the Applicant. He contended that the 1st Respondent has no cause of action against the applicant who was not privy to the contract between the 1st and 2nd Respondents.
Mr. Vincent Kasujja, counsel for the Applicant, argued that the actions of the 2nd Respondent which are the basis of the 1st Respondent’s cause of action against the 2nd Respondent were as a result of the Applicant’s findings and recommendations which the 1st Respondent cannot appropriately answer. He therefore argued that to fairly adjudicate upon the claim in the main suit and avoid a multiplicity of suits it was necessary to add the applicant as a party. Counsel referred to Kololo Curing Co Ltd Vs West Mengo Co-op Union Ltd (1891) HCB 60 where Justice Ntabgoba held that under Order 1 rule 10 (2) of the Civil Procedure Rules not only can any of the parties to a suit avail himself of the provisions of the rule but the court itself can on its own motion join any party as plaintiff or as defendant if in its judgment such joinder would enable court to effectually and completely determine the suit.
In Gokoldas Laximidas Tanna Vs Sorter Rose Munyinza H.C.C. S. No. 7076 of 1987 (1990 – 91) KALR 21 Justice Ouma stated:-
In the instant case the applicant is moving court to exercise its discretion on its own motion under the sub rule to order the Applicant to be joined as a party on the ground that its findings and recommendations are directly affected by granting the relief claimed by the 1st Respondent against the 2nd Respondent. This is born out in paragraphs 3 to 7 of its affidavit in support of the application and paragraphs 9 and 10 of the plaint,
The Inspectorate of Government is a creation of the Constitution under Article 223 whose functions include promotion and fostering strict adherence to the rule of law elimination of abuse of authority and of public office, among others. See Articles 225 and the Inspectorate of Government Act, Act 5/2002 The Inspectorate of Government must own its decisions and recommendations and is under a duty to defend those decisions. Mr. Sekabojja argued that the appropriate option was for either the 2nd Respondent to join the Applicant as a third party or call the Applicant’s officials as witnesses. Considering the fact that the 2nd Respondent had acted on the recommendations of the Applicant it had the said options open to it, if it so chose. However, the 2nd Respondent had not applied to join the Applicant as a third party. It could choose to call or not to call the Applicants Officials involved in the investigations as witness. A non – party to a suit cannot apply to be joined as a third party. Similarity a non-party to a suit cannot call himself as witness where the party who would have reasonably called them chooses not to call them. The most appropriate course is for a party whose interest would be directly affected by the decision to move Court to exercise its discretion to add such party as a person whose presence before Court may be necessary for the effective and complete adjudication upon and settlement of all the issues before it.
However, when exercising its power under the above order Court must also have in mind the issues of costs. When a plaintiff loses a case against any party he has sued in normal circumstances he is bound to shoulder the costs incurred by that party. Therefore a plaintiff cannot be forced to sue somebody whom he has not chosen to sue. See Edward Kabugo Sentongo Vs Dr. George Asaba HCT-00-CC-MA-0238 of 2006, Denis Kimuli Bahemuha Vs Sarah Bimbona Anywar & Anor (1987) HCB 71.
Under the sub-rule a person may be joined whether as plaintiff or defendant or necessary person for the effective and complete adjudication of the matter. In Inspector General of Government Vs Kikonda Butema Farm Ltd and AG C.A. Constitutional Application No 13 of 2006, the IGG applied to be permitted to appear as Amicus Curiae (friend of the Court). According to the Blacks Law Dictionary (7th Edn) that is a person who “is not a party to a law suit but who petitions the Court to file a brief in the action because that person has a strong interest in the subject matter “By virtue of the Applicant’s Constitutional and statutory functions in the circumstances of this case I find the Applicant such a person in circumstances of this case.
Considering the law and all the circumstances giving rise to the 2nd Respondent’s cause of action against the 1st Respondent I find that the applicant is a necessary party for the effective and complete adjudication of the issues in the main suit.
The Applicant has to become a party to the suit. In the circumstances of this case the Applicant cannot be joined as a plaintiff since its interest’s conflict with those of the plaintiff. It cannot be joined as a third party since no such application has been made in that respect by the 2nd Respondent who is the defendant. The Applicants interest is more in line or a kin to those of the defendant. Therefore most logical action would be to add the Applicant as a defendant coming in as a friend of Court.
All in all this application is allowed. The Applicant has been added as a party upon its own interest to become a party therefore each party will bear its own costs.
Hon. Mr. Justice Lameck N. Mukasa
12th April, 2007