ADDITION OF A PARTY TO A SUIT
1.0 LEGISLATION, CASE LAW & GENERAL PRINCIPLES
Section 33 of the Judicature Act, Cap 13 empowers this court to grant absolutely or such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy are finally determined and all multiplicities of legal proceedings concerning any of those matters is avoided.
Section 98 of the Civil Procedure Act which reads that: — “Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or prevent abuse of the process of court”
The section empowers the court to grant the orders in all cases in which it appears to the court to be just and convenient to do so to restrain any person from doing certain acts. The main principle in this section is whether the dictates of justice so demand.
Sufficing to note is that, Civil Procedure rules do not apply in the Court of Appeal. However, Justice Mpagi Bahengeine J.A in the case of Electoral Commission vs. Ssebuliba & 2 Others[1] stated that, “Though the Civil Procedure Rules do not necessarily apply to this court, it is legitimate for this court to apply the principles of law that have been developed under those Rules when this court is exercising its inherent powers.
AT WHAT STAGE CAN YOU ADD A PARTY
Order 1 rule 13 of the Civil Procedure Rules provides thus; “any application to add or strike out or substitute a plaintiff or defendant may 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.”
Order 1 r.10 (2) of the CPR states 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 8 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 Above provision makes mention of 2 kinds of parties: one who ought to have been added and one whose presence is necessary to determine the matter. The law distinguishes a party who ought to have been added but was not and a party whose presence before the court is necessary for the court to effectively and completely adjudicate upon questions involved in the suit.
Mulenga JSC in Departed Asians Property Custodian Board vs. Jaffer Brothers Ltd[2] states that in order for a person to be added to a suit on the ground that his presence was necessary for the effective and complete settlement of all questions involved in the suit, it was necessary to show either that the orders sought would legally affect the interests of that person and that it is desirable to have that person added to avoid multiplicity of suits.
A necessary party is one without whom an order cannot effectively be made. (Learned Author, Mulla).[3] In order that a person a person be considered a necessary party, there must be a right to some relief against him in respect of the matter involved in the suit.
Justice Okello[4] states that the obvious reason, among others, for impleading a necessary party to a suit is because a necessary party could have relevant evidence to give on some of the questions involved in the suit, making it a necessary witness.
What the Applicant seeks in this Application is to amend the pleadings by having a new party as either a Plaintiff or defendant.
The general principal is that the amendment enables parties to alter their pleadings so as to ensure that litigation is conducted on the basis of the real issues in contention between the parties.
The law regarding amendments of pleadings is laid out in Order 6 of the Civil Procedure Rules which provides that:- “The court may at any stage of the pleadings, allow either party to amend in such manner and on such terms as may be just and such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties”.
The case of Departed Asians Property Custodian Board vs. Jaffer Brothers Ltd[5] lays down the conditions that must be met for one to be joined to the suit and these include;
ü That the orders sought by the plaintiff/defendant in the main suit would directly or legally affect the party seeking to be added.
ü That the person qualifies to be joined as a co-defendant/plaintiff because the defendants/plaintiffs cannot effectively set up a desired defence/case unless that person is joined or unless the order to be made would bind that person.
From the Ssebuliba case [cited supra] it is a mandatory requirement that a party seeking to be added adduces sufficient and compelling reasons as to why he or she should be added as a co-plaintiff/defendant failure of which the application may be dismissed with costs to the Applicant. There needs not to exist a cause of action or right of relief against a party seeking to be added, the substratum of the application is the necessity of the party’s presence in enabling the Court to adjudicate the matter at hand.
THIRD PARTY PROCEEDINGS
The second limb to the concept of addition of parties is what is called third party proceedings/third party notice. These proceedings are commenced by a defendant to a suit who thinks that having a certain party added as a co-defendant will help the lessen debase the pain satisfying a judgement decree wholly or in part.
Order 1 rule 14 of the CPR states that where a defendant claims to be entitled to contribution or indemnity over against any person not a party to the suit, he or she may, by leave of the court (by chamber summons ex-parte), issue a notice (hereafter called a “third party notice”) to that person regarding the same.
What are the conditions Precedent?
The case of Sango Bay Ltd v Dresdner Bank[6] states that a party applying for third party proceedings has to satisfy court that;
v There is a proper question to be tried as to the liability of the third party.
v There is a right of indemnity against the third party.
v The indemnity is based on contract.
In addition to the above conditions, in the case of M/s Panyahululu Co. Ltd v M/s New Ocean Transporters Co. Ltd. and Others HCCS №523 of 2006 Bamwine, J. (as he then was) stated that in order that the third party be lawfully joined, the subject matter between the third party and the defendant must be the same as the subject matter between the plaintiff and the defendant and the original cause of action must be the same. In other words the defendant should have a direct right to indemnity as such, which right should have, generally, if not always, arisen from a contract which is express or implied…”
A scenarios could be picked from some of the cases below;
1. Opportunity Bank (U) ltd v MAAD Advertising where initially the Applicant herein had been sued by Winnie Asege for violation of image rights
2. NBS Television v UBC where the applicant had been sued by super sport for copyright infringement
Upon satisfying Court that the conditions precedent are satisfied, a third party notice shall be issued for service on the third party. Incase Judgement is given against the defendant, the third party shall be liable in contribution or indemnity whatever the case maybe.
CONCLUSION,
It is the import of Article 126 (2) (e) of the Constitution that substantive justice should be accorded to the deserving litigant without due regard to technicalities. This clause has been “baptised” by legal scholars and elites in the legal profession as the “lazy lawyers clause” and once a lawyer appearing before a judge pulls it out of their ‘dusty archives’, the Jury or opposing counsel is always quick to cite for them Kasirye Byaruhanga and Co. Advocates v Uganda Development Bank[7], where it was held that “….a litigant who relies on Article 126 (2) (e) of the Constitution must satisfy the Court that in the circumstances of a particular case before the Court, it was not desirable to pay undue regard to the relevant technicality. Article 126 (2) (e) is not a magic wand in the hands of a defaulting litigant.”
However, the opposition by opposite Counsel is usually neutralised by the Sections 33 and 98 of the Judicature and Civil Procedure Acts that clothe the Court with unfettered inherency in power to discretionary grant remedies to the parties.
What’s the point? The point is that when it comes to applications for addition of parties, it would be petty and embarrassing of/to Counsel invoking the decision in the Kasirye case to extinguish the Applicant’s prayer. This is because, the rationale for addition of parties is among others, to enable court close the window for multiplication of suits, determine real questions before court conclusively, allow substantial evidence held by a party applying to be relayed in Court, achieve the ends of justice etc. whether Counsel objects or not, the burden to prove availability of the grounds to grant the application will comfortably be crystallized on the Applicant’s shoulder and once such burden is not satisfactorily discharged, Court will be hesitant to allow the Application.
In light of the above, it is my submission that addition of a necessary party is not only a must but also exclusion/omission of the same is fatal. Why? Any judgment given with an order against a necessary and desirable party behind its back will be to no avail and it cannot be allowed to stand.[8] (See Nabukenya Sarah & 6 others v Sulaiman Mukasa & Sons Ltd & 2 others). For a third party, where the circumstances permit their presence in a suit, it is wise that they are included in a suit help reduce or offset the burden of payment of the decretal sum by the defendant.
[1] C.A Miscellaneous App. 30 (20212) [2012]
[2] SCCA №9 of 1998.
[3] Mulla, the Code of Civil Procedure, Vol. 2, Page 1488
[4] Walimu Co-operative Savings and Credit Union vs. Okumu Benjamin & Komakech Amos HCMA 101/2022
[5] SCCA №9 of 1998.
[6] (№3) [1971] EA 307
[7] SC Civil Application №2/97
[8] See N.U.R.T.W v R.T.E.A.N (2012) 10 NWLR (pt 1307) p. 170,
