Ellen Chen v Byamugisha (Miscellaneous Civil Application No. 240 of 2020) [2020] UGCommC 38 (13 October 2020)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

### **COMMERCIAL DIVISION**

## MISCELLANEOUS APPLICATION NO. 240 OF 2020

## [Arising from Civil Suit No. 231 Of 2017]

ELLEN CHEN :::::::::::::::::::::::::::::::::::: $10$

#### **VERSUS**

BYAMUGISHA STANLEY ::::::::::::::::::::::::::::::::::::

BEFORE: HON. JUSTICE DR. HENRY PETER ADONYO

$\mathsf{S}$

## **RULING**

# 1. Background:

This application was brought by chamber summons under section 98 of the Civil Procedure Act, Order 6 rules 19 and 31 and Order 1 Rules 1, 3 and 13 of the Civil Procedure Rules SI 71-1 for orders that $\overline{20}$ leave be granted to the Applicant to amend her counter claim to add

Hon. Justice Dr. H. P. Adonyo

5 Pujiang Charmer Industry and Trade Company Limited as the 2nd Counter claimant and TripleAEnterprises Limited as the 2nd Counter Defendant for the purposes of determining the real questions In controversy between the parties and for costs to be in the cause. ".. The grounds of the application are that;

- 10 1. The Applicant is one of the directors of Pujiang Charmer Industry and Trade Company, a Chinese based Company - 11. That the Applicant and Respondent were business partners from 2015 to 2017 when their business relationship fell on the rocks - 15 111. That during the subsistence of the business relationship between the Applicant and the Respondent, the Respondent introduced Triple A Enterprise Limited as the consignee to which the goods should be sent

•

IV. That the Applicant on behalf of Pujiang Charmer Industry 20 and Trade Company Limited supplied goods to the Respondent through Triple A Enterprise Limited are the subject matter of the counter-claim in Civil Suit No. 231 of

5 2017 which was filed in this honourable court on The 18th April 2017.

- v. That the addition of Pujiang Charmer Industry and Trade Company Limited and Triple A Enterprises Limited as a ".. counter claimant and counter defendant respectively is 10 necessary for the purposes of determining the real questions in controversy between the parties - VI. That the addition of Pujiang Charmer Industry and Trade Company Limited and Triple A Enterprises Limited as Counter claimant and counter defendant respectively is 15 necessary for the purpose of determining the real questions in controversy between the parties - vu. That this application has been made before the hearing has commenced and therefore no prejudice will be caused to the Respondent if it is allowed by this honourable court - 20 VUI. That this application is brought with the sole purpose of avoiding multiplicity ofsuits over the same subject matter

This chamber summons is supported by an affidavit ofsworn by Ms. Ellen Chen details of which are on record.

•

# 5 2. Applicant's submissions:

The Applicant's submissions are that between 2015 and 2017 the Applicant and Respondent were business partners and that during the subsistence of the business relationship the Respondent " . introduced Triple A Enterprise Limited as the consignee to which 10 goods should be sent.

That the Applicant on behalf of Pujiang Charmer Industry and Trade Company Limited supplied goods to the Respondent through Triple A Enterprises Limited.

It was submitted that the Applicant, while acting through Pujiang 15 Charmer Industry and Trade Company Limited supplied goods to the Respondent through Triple A Enterprises Limited as reflected in the invoices.

That the Applicant and Respondent during the subsistence of their business relationship were acting for themselves and on behalf of 20 Pujiang Charmer Industry and Trade Company Limited and Triple A Enterprises Limited respectively and that a dispute arose between the parties with a suit filed between the two companies where similar questions of law and fact arose as those raised in Civil Suit No. 231

•

4 ~ ''/11 (jjj *rIIl.•.,. }tJl;. ~ ::J)1-. (//;. tr. ~/T*

5 of 20 17 where a counter claim has been filed against the Respondent necessitating bringing on board all parties.

That this application has been made wherein the Applicant sought the discretion of court to add parties who were left out in the '.. counterclaim with no prejudice to be occasioned to the Respondent 10 were this application to be allowed.

In support to this position, the Applicant cited the Supreme Court decision in *Gaso Transport Services (Bus) Limited vs Martin Adala Obene SCCA NO.* **4** *of* **1994** wherein were laid principles recognised as governing the exercise of discretion in allowing 15 amendments which are that;

- 1. The amendments shall not work injustice to the other side. - 11. An injury which can be compensated by the award of costs is not treated as an injustice. - 111. Multiplicity of proceedings should be avoided as far as possible 20 and all amendments which avoid multiplicity should be allowed.

IV. An application which is *malafides* should not be granted.

v. No amendment should be allowed where it is expressly or impliedly prohibited by any law e. g. limitation of action.

•

*e-*

The Respondent did not file any submissions. This ruling is thus $\mathsf{S}$ made on the basis of the pleadings of the parties, the affidavits in support thereof, the law applicable and the facts of this matter.

3. Decision of Court:

This application is brought under Order 6 rule 19 of the Civil Procedure Rules which provides that; $10$

> "The court may at any stage of the proceedings, allow either party to alter or amend his or her pleadings in such manner and on such terms as may be just, and her pleadings in such manner and on such terms as may be just, and all such amendments shall be made as maybe necessary for the purpose of determining the real questions in controversy between the parties.'

Additionally, Order 1 rules 1 and 3 of the Civil Procedure Rules provides for the parties who may be joined as it states that " all persons may be joined in one suit as plaintiffs in whom any right to $20$ *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, severally or

Hen. Justice Dr. H. P. Adonyo

*5 in the alternative, where, if those persons brought separate suits, any common question of law orfact would arise.*

Furthermore, Order 1 rules 2 of the CivilProcedure Rules provides for persons who may be joined as defendants stating that a person ".. may be joined as a defendant if such persons is one against whom 10 any right to 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, severally or in the alternative, where, ifseparate suits were brought against those persons, any common question of law or fact would arise.

15 Given the above position of the law and the fact of this matter, it would appear to me from the Applicant's submissions in the main there existed a business connection between the alleged parties to be joined which connection had turned sour resulting in the dispute currently pending in court with the need to bring all the disputant 20 parties on board through the proposed amendment of pleadings which it is alleged would not change the character of the suit and or introduce a new claim.

•

- In the case of **Kayondo Muhammed and 3 Others vs the** $\mathsf{S}$ Administrator General and 2 Others Miscellaneous Application **No. 628 of 2016** the import of provisions under Order 1 rules 1 and 3 of the Civil Procedure Rules were was noted that an application to add a party could be by any of the parties or could be done by the court on its own motion or by any person where it seen that a legal $10$ right may be directly affected by the grant of the relief claimed in the action if it can be shown that the presence of a person to be added is necessary so as to enable the court to effectively and completely adjudicate or settle a suit before it if the aim was to bring on record all persons who may be considered as parties if they are related to 15 the subject matter before court so that the dispute in question may be determined in their presence without any procrastination, inconvenience and in the avoidance of multiplicity of proceedings. - Therefore, when the instant matter is placed under the above pesrspective, it is clear to me that indeed business transactions did $20$ occur between the propsed parties wherein the supply of goods and reciept of were made between alleged business partners between 2015 and 2017 and that the instant Respondent intoduced a

8 Hon. Justice Dr. H. P. Adonyo

5 company by the names of Triple A Enterprises Limited into the relationship as a consignee to which goods could be sent and that during the pendency ofthe said relationship disputes arose resulting into the filing of civilsuit No. 231 of 20 17 inclusive of a counterclaim " . in it which would invariably means that without some of the parties 10 involved in the transactions there would likely be a miscarriage of justice.

Arising from the above facts therefore, it is clear to me that indeed there were some business transactions between the parties which soured resulting in the dispute currently before this court which by 15 its nature would require the bringing on board all concerned parties if this court were to ensure that all matters in controversy between parties are subsequently determined at once so as to avoid multiplicity of suits.

Given these facts, I would presume that this instant application is 20 brought in order to comply with the requirements of the decision above leaving me to be convinced that that this is a fitting matter in which all alleged parties ought to be brought on board in a single suit if only to avoid multiplicities ofsuits since the in rests ofthe parties

•

- appear to the same and are currently at crossroads with the justice $\mathsf{S}$ in the matter requiring that this mater be brought to its finality by bringing on board all the relevant parties to be joined to the main suit as it is only proper that the plaintiff be allowed to bring on board whomever he or she think fit for the obtaining of the reliefs sought. - Therefore, given the fact that the Respondent did not even object for $10$ it never placed it submissions in opposition in spite of being served through counsel on record of M/s Mark Mwesigye and Co. Advocates on the 24th March 2020, I would find that on the basis of the justification presented by the applicant for this application, the best conclusion this court would arrive at is that this is a proper case for $15$ necessary parties to be added in order to ensure the finality of the dispute between the parties.

Based on the findings and reasons above, I am inclined to allow this application with orders as below.

## 4. Orders: $20$

a. This application is allowed with the Applicant directed to effect the necessary amendments to the pleadings so as to bring on board the necessary parties which would enable this matter to

10 Han. Justice Dr. H. P. Adones

5 proceed to completion without multiplicity of proceedings with summons to such parties made within 15 days from the date of this ruling.

b. Costs will be in the cause.

I so order.

;, .

Hon. Dr. Justice Henry Peter Adonyo Judge 13th October 2020

•