Hoza Auto (U) Ltd v Dr. Asaba George (Civil Miscellaneous Application 14 of 2024) [2025] UGHC 406 (10 March 2025)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KASESE**

**HCT-25-CV-MA-0014-2024**

**(FORMERLY HCT-01-CV-MA-0040-2024)**

**(ARISING FROM HCT-25-CV-CS-0038-2024)**

**HOZA AUTO (U) LTD=========================================APPLICANT**

**VERSUS**

**DR. ASABA GEORGE=======================================RESPONDENT**

**BEFORE HON. JUSTICE DAVID S. L. MAKUMBI**

Applicant represented by M/S Kajeke, Maguru & Co. Advocates

Respondent represented by M/S MAPH Advocates

**RULING**

**BACKGROUND:**

This Application is brought by way of Notice of Motion under Section 98 of the Civil Procedure Act; Order 1 Rules 10(2) and 13; and Order 52 Rules 1, 2 and 3 of the Civil Procedure Rules by which the Applicant seeks the following orders:

1. The Plaint be amended and Twesigye be added as the 2nd Defendant; 2. Costs of the Application be in the cause.

The Application is supported by the affidavit of the Applicant’s Company Secretary Usama Younas. The Deponent stated that the Applicant sold Motor Vehicle No. UBD 727Q to one Twesigye Paul in June 2018 according to receipts and the Delivery Note attached as Annexes “A” and “B”. According to the Deponent under the terms of the agreement the Purchase became responsible for the vehicle and that by 9th August 2023 when the accident occurred the Applicant was not responsible for the vehicle. The Deponent averred that it was just and equitable for the said Twesigye Paul to be added as a co-Defendant and that his addition would prevent a multiplicity of suits and enable court to effectively adjudicate upon all questions in issue.

The Deponent further stated that the amendment of the Plaint would not prejudice the Respondent/Plaintiff.

In response and objection to the Application the Respondent Dr. Asaba George swore an Affidavit in Reply in which he stated that from the evidence arising from the Police Accident Report, the owner of the accident vehicle that damaged his tractor was the Applicant. To that extent the Deponent stated that he had no claim against the intended 2nd Defendant. He further stated that the Applicant ought to have proceeded by way of counterclaim against the person that they believed was responsible for the accident. He went on to state that he had no cause of action against the intended 2nd Defendant and that it would be misconceived and an abuse of court process to introduce a 3rd party against whom he had no cause of action. It was also stated that the pleadings had since closed and that as such the Applicant could not be seen to reopen the pleadings.

**Submissions:**

Counsel for the Applicant argued that according to the terms of sale of the vehicle the purchaser assumed responsibility for any accident that would involve the said vehicle. The Applicant accordingly attached the sale agreement along with other documents to the application. Counsel further argued that this Court is empowered under Order 1 Rule 10(2) of the Civil Procedure Rules to cause appearance of any person that Court deems necessary for the effective adjudication of the suit. Counsel cited the cases of **Ally Route Ltd v Uganda Development Bank Ltd – HCMA No. 59 of 2007** and **Departed Asians Property Custodian Board v Jaffer Brothers Ltd (1999) 1 EA 55** in this regard.

Counsel further cited the cases of **Eastern Bakery v Castelino (1958) 1 EA 461** and **British India General Insurance Co. Ltd v GM Parmar & Co. (1966) 1 EA 172** with regard to amendments being made as long as no injustice is occasioned and are necessary for the purpose of determining the real question in issue.

Counsel went on to argue that the main suit had not yet started and no injustice would be occasioned to the Respondent and that furthermore the Applicant is not liable to the Respondent.

Counsel concluded by stating that the addition of Twesigye Paul as a co-defendant in this matter would enable the Court resolve all controversial issues in the suit.

In response to the arguments of Counsel for the Applicant, Counsel for the Respondent argued that by the Applicant proceeding under Order 1 Rule 10(2) he sought to amend the plaint to include Twesigye Paul as a second defendant which amendment had the effect of amending the Respondent’s pleadings by virtue of Order 6 Rule 19 of the Civil Procedure Rules and yet the Respondent had not disclosed a cause of action against Twesigye Paul. Counsel argued that the Applicant who had a cause of action against Twesigye Paul ought to have proceeded by counterclaim against the third party under Order 8 of the Civil Porcedure Rules. Counsel argued that the failure to proceed under Order 8 cannot create an obligation on the part of the Plaintiff once the Plaintiff had already closed their pleadings.

Counsel for the Respondent further argued that under Order 11A Rule 6 of the Civil Procedure Rules, the Applicant ought to have brought any application seeking to add to or amend pleadings before summons for direction which process has since been concluded.

To the extent of the above, Counsel argued that the application was misconceived and ought to be dismissed.

**ANALYSIS AND RESOLUTION OF THE APPLICATION:**

I have considered the application and submissions of Counsel. The two main issues for the determination of this Court are:

1. Whether or not the Applicant’s application under Order 1 Rule 10(2) of the Civil Procedure Rules to join Twesigye Paul as a 2nd Defendant has merit. 2. In the event that Issue 1 is resolved in the affirmative then whether the Applicant failed to adhere to Order 11A Rule 6 of the Civil Procedure Rules and if so whether it was fatal to the application.

**Issue 1:**

In this matter the Applicant primarily relies upon Order 1 Rule 10(2) of the Civil Procedure Rules. The Rule in question 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 a 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.”*

In this matter the Applicant sought the addition of Twesigye Paul as a 2nd Defendant, because the Applicant had sold the vehicle which had damaged the Respondent’s tractor to Twesigye Paul. The Applicant’s argument in that regard was that having sold the vehicle they bore no liability according to the terms of the sale agreement. The Respondent for his part opposed the application and argued that his cause of action was against the Applicant exclusively and not Twesigye Paul. Counsel for the Respondent took the argument further by stating that the effect of the amendment was to reopen the Respondent’s pleadings after they had been effectively closed.

I have considered the arguments of both parties and my considered view is that Order 1 Rule 10(2) of the Civil Procedure Rules cannot apply to the present situation. A simple reading of the rule shows that the context in which the rule is applied is where the Court deems it necessary to strike out either a plaintiff or defendant who is improperly joined in the suit and then substitute the said plaintiff or defendant with another person whom Court deems necessary for the effective and complete adjudication of the pending suit.

In this case the Applicant is not seeking to substitute an improperly joined Defendant but rather is seeking to introduce an entirely new Defendant whose introduction would have the effect of substantially changing the Respondent’s cause of action after closure of pleadings.

The main suit from which this application originates involves a claim in tort for damages to the Respondent’s tractor. In a suit in tort, defendant cannot be added, even if willing, if the plaintiff opposes (see **Fernandes v Kara Arjan and Sons [1961] EA 693** and **David Kayondo v Resty Nantongo – HCCS 829 of 1993 [1994] VI KaLR 114**). The principle behind this is that the Plaintiff is at all times *Dominus Litis* (the master of the case) and cannot therefore be directed in terms of who to sue or not to sue except perhaps where the pleadings themselves reveal that the Plaintiff ought to have included another party. In this matter though the primary premise upon which the Applicant seeks to add a 2nd Defendant lies in the Applicant’s own pleadings and evidence. The evidence and pleadings of the Applicant cannot therefore be argued as a premise for introducing a new Defendant against the Plaintiff’s wishes.

In this matter it would be advisable for the Applicant to present his defence in the main suit and if successful then it will be upon the Respondent to follow up the proposed 2nd Defendant in a separate suit should he so wish. On the other hand if the Applicant were to be found liable in the main suit then the Applicant would still have the option to pursue a separate suit against the proposed 2nd Defendant on the basis of the terms of the sale agreement if enforceable.

To that extent therefore I find that this application is misconceived and accordingly fails.

The first issue serves to dispose of the application in its entirety and I shall therefore not delve into the second issue.

**ORDER:**

This Application is dismissed with costs to the Respondent.

**David S. L. Makumbi**

**JUDGE**

**10/03/25**