Court name
Commercial Court of Uganda
Judgment date
20 June 2014

Parombo Cotton Farmers Ltd v Uganda Ginners and Cotton Exporters Association (Miscellaneous Application-2013/1072) [2014] UGCommC 83 (20 June 2014);

Cite this case
[2014] UGCommC 83

THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

HIGH COURT MISCELLANEOUS APPLICATION NO 1072 OF 2013

PAROMBO COTTON FARMERS LTD}.....................................................APPLICANT  

VS

UGANDA GINNERS AND COTTON

EXPORTERS ASSOCIATION LTD}......................................................RESPONDENT

BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA

RULING

The Applicant's application was commenced under the provisions of Order 1 rules 10 (2), 13 and Order 52 rules 1, 2 and 3 of the Civil Procedure Rules, section 4 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act, section 98 Civil Procedure Act and section 39 of the Judicature Act as well as Articles 21 and 28 of the Constitution of the Republic of Uganda for orders that the court sanctions the addition of the Defendants 2 – 12 to this suit and costs of the application.

The grounds of the application are that in a hurry and particularly to comply with the requirements of amending the Plaint within the time set out in the Civil Procedure Rules Counsel for the Applicant inadvertently over looked the necessity to formally seek the court permission or sanction to add parties as prescribed by law. Secondly the law permits the court to sanction the addition of parties at any time before or at the trial of the suit. Thirdly time would be saved if the application is made and heard before the trial rather than at the trial. Fourthly it is just and equitable that the application is allowed as the Defendants will neither suffer loss nor injustice arising from any accrued right or defence. Lastly that it is in the interest of justice that the omission of Counsel or error ought not to be visited on the Applicant.

The grounds of the application are further supported by the affidavit of Godfrey Sentongo the Managing Director of the Applicant deposes to the facts in support of the application stated below. On 25 April 2013 the Applicant filed HCCS 217 of 2013 in the commercial division of the High Court against Uganda Ginners and Cotton Exporters Association Ltd. Subsequently the Managing Director came to believe that other persons ought to have been joined as Defendants and on behalf of the Plaintiff instructed Counsel to add those persons as Defendants and it was done. Later on he was informed by his Counsel that while the addition of the Defendants 2 – 12 was made in a timely manner, there was an inadvertent error made when the Defendants were added to the suit without the leave of court. The parties who are sought to be added filed a joint defence within the prescribed time and there was no objection to their addition in the defence. Consequently the omission to seek prior permission of the court would not prejudice the Defendants so added and it would not require any amendment to the defence and therefore could not deprive them of any accrued legal right. On the advice of his lawyers he believes that the requirement for obtaining prior permission of the court where the amendment added new parties becomes necessary is a legal technicality which may be overlooked where no injustice would be caused to the Defendants so that the case may be tried on merits. Furthermore he believes that the omission to add the parties can be corrected under the provisions of the law and it would be unfair for the Applicant/Plaintiff to be punished for the inadvertent error of its lawyers. The case before the court has not yet come for trial and the Defendants will suffer no injustice if the case proceeds on the basis of the pleadings of both parties.

The application was strongly opposed by the Respondent’s Counsels and the Respondent filed an affidavit in reply through its Counsel Prof John Jean Barya.

In the deposition he states that the Respondent number 10 had passed on. Originally the Applicant/Plaintiff only sued the first Respondent/Defendant by way of a summary suit. Whereupon the first Respondent filed Miscellaneous Application No. 364 of 2013 and was granted leave to appear and defend the suit and filed a written statement of defence on 19 June 2013. On 1 July 2013 the Applicant/Plaintiff filed an amended plaint which had inter alia the effect of adding the 2nd – 12th Respondents/Defendants inclusive without first applying to obtain the leave of the court or the consent of the first Respondent/Defendant and served it on the firm of Prof John Jean Barya on 2 July 2013 and the reply was filed by his firm on 11 July 2013. Subsequently on 22 July 2013 the Respondents/Defendants filed Miscellaneous Application No. 622 of 2013 for an order for security for costs. While arguing miscellaneous application 622 of 2013 the Defendants Counsel raised points of law to show that the Applicant/Plaintiff did not have a prima facie case or at all which included inter alia the point of law that the amendment of the plaint to add the second to the 12th Applicants/Defendants without first applying to and being granted the leave of the court or consent of the first Respondent/Defendant was illegal, null and void with the consequence that the parties improperly added ought to be struck out.

The learned Assistant Registrar in his brief ruling delivered on 22 October 2013 dismissed Miscellaneous Application 622 of 2013 and declined to consider the points of law raised for reasons that they touched the main matter and were the domain of the trial court. He did not consider invoking the provisions of order 51 rules 7 to refer the preliminary points of law for determination or necessary directions of the judge although he was requested to do so. For making the point the deponent relies on the record of proceedings and ruling. The Applicant/Plaintiff filed this application on 17 December 2013 subsequent to the ruling of the Assistant Registrar on 22 October 2013. The Applicant’s application singled out one preliminary objection on a point of law among many others raised in miscellaneous application number 622 of 2013 to circumvent it is being raised again in the future. By filing this application the Applicant/Plaintiff concedes that it needed to make an application for leave of court or consent of the first Respondent/Defendant to file the amendment. According to him an amendment of a pleading which has the effect of adding or substitute parties, if not affected by the court on its own motion or pursuant to the leave of court or consent of the existing other party upon application is illegal and a nullity and cannot be sanctioned by a court of law. Accordingly the application seeks the sanction of the court of the admitted illegality and cannot be maintained in law. Since the law permits the Respondents/Defendants, they will raise the preliminary points of law which were raised in Miscellaneous Application No. 622 of 2013, but which were not determined and which go to the very root of the Applicants/Plaintiffs main suit namely:

  • The suit against the second and third Respondents/Defendant is statute barred by reason of the provisions of the Civil Procedure and Limitation (Miscellaneous Provisions) Act cap 72 sections 2 and 4 thereof.
  • That this suit is founded on a scheme (Cotton Development Fund (CDF)) which the Applicant; (a) had prior sufficient knowledge of; (b) voluntarily embraced wholeheartedly and voluntarily subscribed to in terms of monetary contributions and decision-making; (c) greatly benefited from with other member contributors in terms of profitability of the business for which the CDF was contributed and in terms of refunds to minimise their losses.
  • If the CDF scheme is illegal the Applicant/Plaintiff is party to the illegality and it cannot base its claim on such illegality.
  • In the alternative but without prejudice to the above, since the CDF scheme is an illegal scheme the Applicant also has no cause of action against all or any of the Respondents/Defendants founded on CDF’s legality.
  • The first Respondent/Defendant is to the knowledge of the Applicant/Plaintiff an agent of the individual ginner corporate contributors of the CDF including the Applicant/Plaintiff and a suit against the first Respondent for the first Defendant cannot be maintained.
  • With respect to the proposed Defendants, they are to the knowledge of the Applicant/Plaintiff, directors and agents and/or servants of their respective principal's who were at the time of adding them to the suit known to the Applicant/Plaintiff and the suit against them individually cannot be maintained.
  • The suit claims an award of compound interest against the known principles of law governing such a claim.
  • The affidavits of Amdan Khan were valid in so far as he was also a party to the application and made the deposition in that capacity and had knowledge of the allegations in this suit as the allegations against all the Applicants/Respondents are common to them; and
  • Miscellaneous Application 622 of 2013 was such an application where section 106 of the Evidence Act should apply to require the Respondent to shed light on its financial capacity to afford payment of the Applicant's costs in the event that the Applicant succeeded in the main suit.

At the hearing of the application Godfrey Lule SC appeared with Counsel Jimmy Walabyeki for the Applicant while Counsel Nester Byamugisha represented the Respondent and the court heard oral submissions.

The court was informed that the Respondent number 10 passed on and the Applicants Counsel applied to withdraw the application as against the 10th Respondent and the 10th Respondent was dropped from the application.

The Applicant relies on Order 1 rule 10 (2) and rule 13 of the Civil Procedure Rules, section 4 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act, section 98 of the Civil Procedure Act and articles 21 and 28 of the constitution of the Republic of Uganda together with the affidavit of Godfrey Sentongo in support of the application which has been set out above.

Order 1 rule 10 (2) of the Civil Procedure Rules provides that:

"The court may at any stage of the proceedings either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant, be struck out, and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added."

Counsel submitted that the rule is interpreted by Sakar's “The Law of Civil Procedure”. It is provided that the primary meaning of a party is a litigant who has a part to play in the proceedings. Secondly the necessary consideration before court while determining the question of impleadment of a party to the proceedings is whether the said party is a necessary or proper party and presence of such party before the court is necessary for complete and effectual adjudication of the subject matter. Where there is no allegation that some of the Defendants interfered with the right of the Plaintiff, they are not necessary parties. Thirdly the proper party is one whose presence is considered appropriate for effective decision of the case; though no relief may have been claim against him. Fourthly the power under the rule may be exercised at any stage of the proceedings subject to the law of limitation. The discretion given is wide, the object being to avoid multiplicity of suits and conflict of decisions. The author goes on to write that whether the particular Defendant is the proper party or not can only be decided after the Defendant files his written statement. Fifthly if a suit can be maintained against one of the Defendants, it should be dismissed against him without rejecting the whole plaint.

The Applicants Counsel maintained that the Defendants sought to be added are necessary according to the plaint paragraph 2. Counsel invited the court to consider paragraph 3 and particulars of coercion and duress at page 6 of the amended plaint. Particulars of illegality by the Defendant are at page 8 and paragraph 5 thereof. The parties sought to be added are proper and necessary. The Applicants Counsel conceded that there was an irregularity in adding Defendants without the leave of court. However the application should be granted for two main reasons.

Firstly under article 126 (1) (e) of the Constitution, the substance of dispute should be considered. This suit involves coercion and illegality which the court cannot overlook. Counsel referred to the case of UTEX industries versus Attorney General SCCA No 52 of 1995 and Banco Arabe Espanol versus Bank of Uganda Supreme Court Civil Appeal Number 4 for the proposition that the mistakes of Counsel should not be visited on the client. This is based on the irregularity of adding Defendants without the leave of court. According to the case of Muddu Awulira Enterprises Ltd versus Uganda Ginners and Cotton Exporters and 11 Others Miscellaneous Application Number 1070 of 2013 arising from HCCS Number 222 of 2013, the omission to seek leave to add parties was irregular but not illegal or a nullity as it did not cause any injustice to the parties. Counsel further referred to the case of Mawji versus Arusha General Store [1970] EA 137 for the proposition that irregularities in relation to the rules of procedure do not vitiate the proceedings if no injustice has been done to the parties. Non-compliance with the rules of procedure which are directory and not mandatory rules would normally not result in the proceedings being vitiated if in fact no injustice has been done to the parties. Counsel contended that the Defendants filed defences when the amended plaint was served on them and it did not raise any objections to being parties to the suit. Furthermore section 33 of the Judicature Act empowers the court to avoid multiplicity of suits. Finally the mistakes of Counsel should not be visited on its clients according to the case of Banco Arabe Espanol versus Bank of Uganda (supra).

Senior Counsel Godfrey Lule SC further submitted that the Constitutional Court has done away with limitations to serve statutory notices in the case of Kabandize and 20 Others vs. Kampala Capital City Authority Civil Appeal Number 28 of 2011. The High Court had dismissed this suit on the ground that there was no evidence that statutory notice of intention to sue had been served on the Defendant hence the appeal. The Court of Appeal found that the provision for service of statutory notice was inconsistent with article 20 (1) of the Constitution which prescribes equality before and under the law to all persons.

In reply Counsel Nestor Byamugisha strongly opposed the application and relied on the affidavit in reply referred to above. The Respondent had filed Miscellaneous Application No. 622 of 2013 for security for costs before the honourable assistant registrar whereupon they raised a point of law that the addition of parties without leave of court is illegal and a nullity. Counsel relied on the case of Gidudu Michael versus Terra Firma Construction Ltd (2003) KALR 487 where it was held that under Order 1 rules 10 (2) of the Civil Procedure Rules, addition of parties requires the leave of court and that the joinder of the second Defendant by the Plaintiff without leave was wrongful and would be struck out. Counsel further relied on the case of Kananura Melvin Consulting Engineers and Seven Others versus Connie Kabanda Civil Appeal Number 31 of 1992 reported in [1992] KALR 396 where it was also held that leave was required for the addition of parties. Counsel further referred to my decision in Executive Properties Limited and 12 others versus Akright Project Ltd HCMA 643 of 2012 arising from HCCS 251 of 2012 in which I upheld an application to strike out parties to an amended pleading without leave.

Counsel further contended that the way the application has been conducted is as if it is an application for leave to join parties. However it is supposed to be an application for retrospective addition. That amendment is not capable of being sanctioned. And failure to sanction it will not cause multiplicity of proceedings. The Applicant can come back and seek the necessary application. Secondly the case of Muddu Awulira (supra) is not binding on this court and the decision in Executive Properties (supra) is still good law.

The Respondents Counsel further submitted that the addition of the parties would lead to no good because even if they were added, and illegality cannot found a cause of action where the Plaintiff is a party. Counsel relied on the case of Kiriri Cotton Company Limited versus Ranchhoddas Keshavji Dewani [1958] EA 239 a decision of the East African Court of Appeal sitting at Kampala. In holding number three it was held that normally the court will not assist a party to recover money, if the cause of action involves reliance on the commission by that party of an illegal act unless the transaction is made illegal by statute with the object of protecting a particular class of persons of whom the party is one. It is a rule of equity that equity will not assist a person who comes to a court of justice with unclean hands. Counsel contended that the alleged illegal transaction the Plaintiff founds his transaction on is one where he participated fully and benefited. In the premises the court cannot assist him. Counsel further supported the proposition which the case of Active Automobile Spares Ltd versus Crane Bank and another SCCA 21 of 2001 for the same principles.

He prayed that the application is dismissed with costs. Regarding the case of Kabandizi (supra) it dealt with the provisions for statutory notice and does not apply to limitation under the Act. Furthermore the third to the 12th Defendants are agents and the principal is the one who has been sued. They are agents of a known principal.

In rejoinder the Applicants Counsel reiterated earlier arguments in support of the application that the Defendants are necessary parties sought to be added. A person may be added though no relief may be claimed against him. Any contentions can be proved in evidence at the trial and it is premature to raise matters concerning cause of action at this stage. Secondly the question of illegality perpetrated by the Defendants is a question of mixed law and fact. The issue ought to be decided once both parties present their evidence.

The case of Executive Properties Limited (supra) is distinguishable from the current circumstances of the Applicant and the Respondent. In that case there was a substitution of parties and not addition of parties. The reply complained about in that application was filed five months out of time without leave. In this case the parties were added before the time for closing the amended pleadings expired.

Regarding the decision of the Assistant Registrar, the Applicants Counsel rejoined that the Respondents ought to have appealed from the Registrar’s decision under the relevant laws. It cannot raise this point in this application as it would amount to an abuse of court process. He further sought to distinguish the cases cited by Nestor Byamugisha. Furthermore Godfrey Lule SC submitted that the Respondent conceded that if they were not added at this stage, the Plaintiff can still go back and file another suit against them. That is the very mischief that is sought to be cured in this application. The second point is that the case does not abate because of nonjoinder and continues against the Defendant.

Ruling

I have carefully considered the Applicants application being an application to add Defendants under the provisions of Order 1 rule 10 (2) of the Civil Procedure Rules which provides as follows:

"The court may at any stage of the proceedings either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant, be struck out, and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added."

The rule gives the court wide discretionary powers to join or add a party as a Plaintiff or Defendant who ought to have been joined or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit. A Plaintiff is ordinarily at liberty to join all persons who may be liable as Defendants. This principle is reflected in rule 3 of Order 1 of the Civil Procedure Rules which provides that:

"All persons may be joined as Defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transaction is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against those persons, any common question of law or fact would arise."

The second important principle is reflected in rule 9 of the same order that no suit shall be defeated by reason of the misjoinder or nonjoinder of parties and in every suit the court may deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

Rule 3 espouses the important principle that the Plaintiff has a choice of whom to sue. Where the Plaintiff has sued only one of the possible Defendants, he or she may apply for the addition of other parties as Defendants on the ground that they ought to have been joined or are necessary parties.

I have carefully considered the objection to the addition of Defendants by the Respondents Counsel on the ground that in the amended plaint the Defendants sought to be added to this suit had already been added without leave of court. These are the 2nd to the 12th Defendants. The name of the 10th Defendant Mr Amos Mugisha (deceased) was dropped out of the application. The original plaint was against Uganda Cotton Exporters Association Ltd (Association) and it was by summary plaint. Subsequently the Defendant sought and was granted leave to file a defence to the claim of the Plaintiff. On 1 July 2013 the Plaintiff filed an amended plaint in which it indicated that it amended the summary plaint filed on the 3rd of May 2013. There is no submission that the amended plaint was filed out of time without leave of court. The Plaintiff is at liberty to amend the plaint under the provisions of Order 6 rule 20 of the Civil Procedure Rules without leave at any time within 21 days from the date of issuance of summons to the Defendant. Where a written statement of defence has been filed, the amendment has to be made within 14 days from the filing of the written statement of defence or the last of such written statements of defence. Leave was granted for the Defendant to defend the suit on 11 June 2013. Subsequently the Defendant filed a written statement of defence on 19 June 2013.

An amended plaint was filed by the Plaintiff on 1 July 2013 within 14 days from the filing of the written statement of defence of the Defendant. In the amended written statement of defence the Plaintiff included the 2nd up to the 12th Defendants without leave of court. Consequently as far as the amendment of the plaint is concerned, the amendment is permitted by Order 6 rule 20 of the Civil Procedure Rules. The controversy only relates to the addition of the other 11 Defendants.

Apparently the issue of addition of the 11 Defendants was raised as an objection before the Assistant Registrar in Miscellaneous Application No. 622 of 2013 being an application for security for costs. The registrar however never ruled on the issue and did not refer it to the judge for consideration or directions. I agree with the Applicants Counsel that it is improper to raise the issue in this application when it has not been appealed. An appeal lies from a decision of the registrar to a judge of the High Court within seven days from the order of the registrar under section 79 (1) (b) of the Civil Procedure Act. This is an application brought by the Plaintiff and not the Respondents who had raised the matter before the registrar and are now raising the same matter before this court out of time to appeal.

The second matter for consideration is whether an objection can be made to the addition of the 11 Defendants because it was made without the leave of court. The Applicant’s application amounts to a concession that the addition of the 11 Defendants was improper or irregular. Counsel Nestor Byamugisha submitted that it was an illegality or a nullity following the judgment of his Lordship honourable Mr Justice Mukasa in Gidudu Michael vs. Terra Firma Construction Ltd HCCS 4/04 where he held that under Order 1 rules 10 (2) of the Civil Procedure Rules addition of a party requires leave of court and an addition made without the leave of court of a party in contravention of the rules that is without the leave of court is bound to be struck out. I was further referred to the case of Godfrey Ojwang versus Wilson Bagonza in Civil Appeal No. 25 of 2002. In the judgment read by Byamugisha JA it was established that the transaction of sale did not comply with the provisions of the Land Reform Decree and it was illegal in its inception. The question was whether the money paid by the Respondent was recoverable. The court noted that nobody can claim a remedy or right under an illegal transaction in which he or she has taken part. A court of law cannot sanction that which is illegal and illegality once brought to the attention of court, overrides all questions of pleading including any admissions made thereon and reference was made to the case of Makula International Ltd versus Cardinal Nsubuga and another [1982] HCB 11 which was applied.

On the other hand the case of Mawji versus Arusha General Store [1970] EA page 137 being a judgment of the East African Court of Appeal sitting at Dar es Salaam held that irregularity in relation to the rules of procedure does not vitiate the proceedings if no injustice has been done to the parties. The judgment of Sir Charles Newbold P at page 138 is as follows:

"We have repeatedly said that the rules of procedure are designed to give effect to the rights of the parties and that once the parties are brought before the courts in such a way that no possible injustice is caused to either, then a mere irregularity in relation to the rules of procedure should not result in vitiation of the proceedings. I should like to make it clear that this does not mean that the rules of procedure should not be complied with – indeed, they should be. But non-compliance with the rules of procedure of the court, which are directory and not mandatory rules, would not normally result in the proceedings being vitiated if, in fact, no injustice has been done to the parties."

The case of Godfrey Ojwang vs. Wilson Bagonza Court of Appeal Civil Appeal No. 25 of 2002 dealt with an illegality. It is doubtful whether failure to obtain leave of court to add a party under Order 1 rules 10 (2) Civil Procedure Rules is an illegality. As noted above the Plaintiff is at liberty to sue any Defendant at the risk of incurring costs for bringing a frivolous or vexatious action or an action when there is no cause of action. However the question of whether a suit would disclose any cause of action can only be considered when a defence has been filed. Where no defence has been filed judgment not on the merits can be entered in default of filing a defence. The Applicant submitted that the omission was an irregularity.

I agree with the Applicant’s submissions that it is an irregularity on the ground that the Plaintiff is at liberty to sue whomsoever they want to sue provided a cause of action is disclosed. In other words it is not illegal for the Plaintiff to sue a Defendant. Where the Plaintiff has sued a Defendant, the rules require him to seek the leave of court to add additional Defendants. This rule should be considered in the context of other rules. As noted above under Order 1 rule 3 of the Civil Procedure Rules all persons may be joined as Defendants against whom any right or relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist whether jointly or severally or in the alternative where if the suit was brought any common questions of law or fact would arise. In other words it is convenient to join Defendants against whom common questions of law or fact would arise. Failure to obtain the leave of court would in the context of the rules be an irregularity and not an illegality since the rules permit the joining of several Defendants where common questions of fact or law arise. I have considered the case of Kananura Melvin Consultant Engineers and Seven Others versus Conee Kabanda Civil Appeal No 31 of 1992 where the summary of the case notes reported in [1992] KALR at page 395 is that the Respondent was not allowed by the rules to join new Defendants as partners in the appellant firm without the leave of court under the provisions of Order 1 rule 10 (2) and rule 13 of the Civil Procedure Rules which rules empower the court to either add or strike out parties on its own motion or as moved by any of the parties. The issues framed for determination by the trial judge in the High Court were: Whether Respondent’s numbers 2 up to number 7 were properly joined as Defendants. The trial judge ruled that it was not a valid objection on the ground of misjoinder. A party is at liberty to sue or join any party he wishes to the suit. The law is that any cause or matter shall not be defeated by reason of the misjoinder or nonjoinder of any party and the court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the parties who are parties to the cause or matter. Justice Manyindo noted that Counsel ought to have invoked the provisions of Order 1 rule 13 of the Civil Procedure Rules which permits an application to add or strike out or substitute a Plaintiff or Defendant to be made to the court at any time before trial by motion or summons or at the trial of the suit in a summary manner. He noted that Order 1 Rule 10 (2) of the Civil Procedure Rules is to the same effect. He came to the conclusion that the right parties were sued. The case did not consider an application to add a party but rather whether a party had been properly joined. It is therefore distinguishable from the facts and circumstances of this case.

Furthermore in the circumstances of this case the Applicant’s application concedes that it was irregular to add Defendants without the leave of court. It is improper in my view to consider the question raised before the assistant registrar as to the addition of other Defendants to the amended plaint. The Applicant in this application, and as conceded by the Respondents Counsel, was argued as if not addition has been made and is seeking the leave of court to add the parties. In other words the Respondent submits that the names of the 11 Defendants irregularly added on without the leave of court should be struck out and the Applicant should file a fresh application to have them added on. I agree with the Applicants that this would be a technicality and that the court should apply substantive justice under the provisions of article 126 (2) (e) of the Constitution of the Republic of Uganda to the effect that substantive justice shall be administered without undue regard to technicalities. It is true that the administration of substantive justice under that article of the Constitution is subject to law. The law in question is permissive of the addition of parties where common questions of fact or law would arise. What has been breached is the requirement to seek the leave of the court. The issue of the requirement to seek the leave of the court does not arise in this application since it is an application to seek the leave of court to add 10 Defendants one of the Defendants having passed away. Instead of waiting to consider the application in a fresh application, the current application can be considered as if no Defendant has been added without leave in order to avoid multiplicity of proceedings.

The objections on the ground that leave of the court has not been obtained is overruled because the Applicant has come to court to seek such leave. The Applicant has further conceded that it is necessary to seek the leave of the court. In the premises the application will be handled on the merits.

The major submission in opposition to the Applicants application is the assertion of the Respondent that the proposed Defendants are agents of the original Defendant (in law the only Defendant) Messieurs Uganda Ginners and Cotton Exporters Association Ltd. I have not been addressed on any rule of law barring a Plaintiff from proceeding against the principal and agent in the same suit. In any case the question of being a principal and agent needs to be proved. The amended plaint if it is to be taken as an illustration purports to sue the Defendants in their own capacities. That notwithstanding it is a requirement under Order 1 rule 10 (4) of the Civil Procedure Rules for the plaint to be amended where there is addition of a Defendant in such manner as may be necessary. The only grounds that can be considered are the grounds for joining the Defendants in the same suit which grounds are found under Order 1 rule 10 (2) of the Civil Procedure Rules. Where there are grounds for joining a Defendant, an order would be made to add the Defendant whereupon the plaint would be amended in such manner as may be necessary. It is only thereafter that the objection can be taken by the Defendant to the suit. For the moment the capacity in which the Defendants are sought to be added is in their own capacities.

In support of the Applicant’s application is the fact that the Defendants sought to be added had filed a defence to the amended plaint. In other words it is an argument that no prejudice has been occasioned. I do not agree with that argument because by conceding that the addition of the Defendants without the leave of court was an irregularity and that it is necessary to seek the leave of court, the court cannot consider the defence filed in reply to the irregular addition of parties. An application for leave to add the Defendant should be considered on its own merits. The Applicant on matters of fact however relies on the amended plaint for the cause of action against the Defendants in ground one of the notice of motion that the Plaintiff’s Counsel forgot to seek the permission or sanction of the court prior to filing an amended plaint which contains the alleged cause of action against the other Defendants. The ground for an application of this nature cannot be the failure to seek the sanction of the court. It should be the grounds for addition of the other Defendants. Looking at the substance of the application, the grounds can only be gleaned from the plaint which adds the 11 other Defendants without the leave of court. It is the import of the submissions of the Applicants Counsel that the court should peruse the plaint. The Plaint is on court record though it was not attached to the Applicant’s application.

I have considered my decision in Executive Properties Ltd and Others versus Akright Projects Ltd (supra). That suit dealt with an application to strike out from the court record improperly added Defendants to the suit. In that case I considered whether an addition of a party can be made in an application for amendment of pleadings or whether it can be done in an amendment without leave of court. In my considered judgment I ruled that amendments deal with existing pleadings under Order 6 of the Civil Procedure Rules while addition of parties is made under Order 1 of the Civil Procedure Rules. I also quoted from Odgers Principles of Pleading and Practice in Civil Actions in the High Court of Justice 22nd edition at page 159 that amendments cannot be extended to addition or substitution of parties to an action, and to quote:

“The appropriate authority on this point is Odgers' Principles of Pleading and Practice in Civil Actions in the High Court of Justice 22nd edition at page 159 where it is written as follows:

"After service the writ may be amended once without leave at any time before pleadings are closed. But this facility does not extend to an amendment consisting of the addition, omission or substitution of a party to the action…"

My conclusion is that substitution of parties can only be made with the leave of court under Order 1 rule 10 and 13 of the Civil Procedure Rules. This is because the rule making authority has deemed it fit to make a specific provision for the addition, substitution or striking out of parties in a separate rule and separate Order in the Civil Procedure Rules namely Order 1 rules 10 and 13 of the Civil Procedure Rules. Secondly amendments are dealt with under Order 6 of the Civil Procedure Rules. I agree that these rules should not be mixed as the considerations for addition of parties is catered for under a separate rule from considerations for amendments. I must add that an amendment without leave of court presupposes that summons had been served on the Defendant or Defendants. Therefore if summons have not been served, they can simply be withdrawn and the appropriate pleadings substituted before service without prejudice to anybody. I also agree with Counsel for the Applicant that where an application for addition of the Defendant is allowed by the court, it would be necessary to amend the plaint and on the new means together with an amended summons which will be served on the new Defendants according to order 1 rule 10 (4) of the Civil Procedure Rules.”

The above case is distinguishable on the ground that it arose from an application by the Defendants who had been added without leave of court to be struck off. In this case there is an application for leave to add Defendants. If considered on the merits, the application assumes that there is no Defendant who has been added that they seek to be added. In other words they have conceded that whatever persons they added to the amended plaint were irregularly added and they required the leave of the court. Leave of the court is sought not to validate what has already occurred but to obtain the leave for the first time. In other words and consistent with the case of Executive Properties Ltd (supra), the Defendants had been wrongfully added without the leave of the court. The current application seeks the leave of court to add Defendants.

I was further addressed on the law of limitation in anticipation of a point of law that this suit could be time barred. The question of whether the suit is time barred against any Defendant cannot be tried in an application for substitution of parties. The principles applied in amendments of pleadings according to the case of Auto Garage versus Motokov [1971] EA at page 514 include the principle that an amendment would not be allowed so as to defeat the defence of limitation. The substitution or addition of parties cannot cure the defence of limitation but an amendment of pleadings can. The principle is that the court cannot amend a nullity since a plaint which discloses no cause of action shall be rejected under Order 7 rule 11 of the Civil Procedure Rules. Furthermore a plaint which is barred by statute discloses no cause of action. The principles deal with amendments of pleadings and not addition of parties. The submissions of Counsel are pre-emptive of matters which should be reserved for trial of the action. If the suit is time barred against the Defendant, then let it be considered on its merits at the appropriate time.

Finally as far as the merits of the application are concerned, the question of whether the Plaintiff relies on an illegality is a matter that can be tried before it can be concluded. It requires the adducing of evidence and cannot be considered as a preliminary point. This is because in paragraph 3 of the amended plaint, the Plaintiffs claim against the Defendants is for a liquidated sum of Uganda shillings 679,800,032/= and interest thereon illegally imposed and collected. From the face of the pleadings, the Plaintiff alleges that it is the interest on the principal sum which was illegally imposed and collected. They alleged that every cotton dealer in Uganda was obliged to be a member of the first Defendant and to contribute a certain amount of money. The question of whether the levy of the amounts is unlawful is a matter that should be tried.

In the premises the issue is whether the Plaintiff has a claim against the Defendants. I agree with the principles in the authority adduced by the Plaintiff's Counsel of Sakar’s the Law of Civil Procedure” Ninth Edition 2000 volume 1. He writes that the question of addition of parties is one of judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case. The question is whether the party sought to be joined is necessary or proper party and whether the presence of such a party before the court is necessary for complete and effectual adjudication of the subject matter. Where there is no allegation that some of the Defendants interfered with the right of the Plaintiff, they are not necessary parties. In this case there are allegations that the Defendants interfered with the rights of the Plaintiff according to the pleadings in the amended plaint. The amended plaint was amended within 14 days after filing of a defence within time under Order 6 rule 20 of the Civil Procedure Rules but the Defendants were improperly added. In the premises there is a claim against the Defendants jointly and severally save for Defendant number 10 against whose estate the Applicants have dropped their claims.

In the premises if the Defendants so wish, they would defend the action and raise any point of law against the Plaintiff to the prejudice of the Plaintiff. In those circumstances the Applicant’s application is allowed. The Applicant shall proceed to amend the plaint to add Defendants number two up to number 12 to the amended plaint except Defendant number 10. Any necessary amendments pursuant to the addition of the 10 Defendants as Defendant to the plaint shall be effected under the provisions of Order 1 rule 10 (4) of the Civil Procedure Rules within 14 days from the date of this order and shall be served on the Defendants within the same period.

The Defendants will have an opportunity to reply to the defence within 14 days after service on them of the amended plaint.

Costs of the application shall be borne by the Applicant in any event.

Ruling delivered in open court the 20th of June 2014

 

Christopher Madrama Izama

Judge

Ruling delivered in the presence of:

Nester Byamugisha for the Respondent

Jimmy Walabyeki for the Applicant

Charles Okuni: Court Clerk

 

Christopher Madrama Izama

Judge

20/June/2014