Strabag International GMBH v Araku & Araku (Miscellaneous Application 103 of 2022) [2024] UGHC 529 (12 June 2024)
Full Case Text
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### THE REPUBLIC OF UGANDA
# IN THE HIGH COURT OF ARUA AT ARUA
# **MISCELLANIOUS APPLICATION NO. 103 OF 2022**
### ARISING FROM CIVIL SUIT NO. 0022 OF 2021
# STRABAG INTERNATIONAL GMBH::::::::::::::APPLICANT/DEFENDANT
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#### **VERSUS**
# ARAKU JOSEPH::::::::::::::::::::::::::::::::::::
AND
IDRO LUKE ARAKU:::::::::::::::::::::::::::::::::::
#### **BEFORE: HON. JUSTICE COLLINS ACELLAM**
#### **RULING**
#### **Brief Introduction**
This is an Ex parte application brought under Order 1 rule 14 CPR as amended for orders that; leave be granted to the applicant to issue a third-party notice to IDRO LUKE ARAKU and for costs of the application.
#### Grounds of the Application.
The grounds of the application are stated in the affidavit of MONICA KOMUSINGUZI in support of the application, and these are that.
- 1. That the Applicant Company entered into a lease agreement with the third party for a land situated in Silili Village, Mgbere Parish, Dzaipi Sub County Adjumani District. - 2. That the third Party, IDRO LUKE ARAKU signed the lease agreement on behalf of his father, Araku Joseph. - 3. That According to the lease agreement, the third party warranted that he had lawful authority to lease the said property to the Applicant Company for excavation of murram and the third party warranted and undertook to indemnify the lessee in the event of adverse claims. - 4. That the Adverse claims have since arisen resulting into the Applicant Company being sued vide Civil Suit No. 0022 of 2022. - 5. That the Applicant is accordingly entitled to indemnity from the third party against all claims in the main suit and as such, brings this Application. - 6. That it is only right and just to grant the leave to issue a third-party Notice to IDRO LUKE ARAKU.
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#### Representation.
During the hearing, the Applicant was represented by Angualia Busiku & Co. Advocates.
$\mathsf{S}$ This being an ex-parte Application, the Applicant filed in their submissions which I have duly considered in coming up with this ruling.
**Issue**
Whether there are sufficient grounds to join the Respondent as Third Party to Civil Suit No. 0022 of 2022.
#### 10 Determination / Analysis
#### Position of the law.
The principles under third party notices are well settled under the law and case laws.
Order 1 rule 14 CPR provides that:
"Where a defendant claims to be entitled to contribution or indemnity against any person not a party to the suit, he or she may, by leave of the court, issue a notice (hereafter called a "third party notice") to that effect."
In the case of NBS Television Ltd Vs. Uganda Broadcasting Corporation, M. A No. 421 of 2012 the court interpreted Order 1 rule 14 CPR in the following terms:
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"Quite clearly, Order 1 rule 14(1) and (2) CPR is confined to cases where a defendant claims indemnity or contribution from a third party that would otherwise be a stranger to the suit. It is trite law that for a third party to be legally joined to a suit, the subject matter as between the defendant and the third party must be the same as that between the defendant and the plaintiff, and similarly the cause of action between the defendant and the third party must be the same as the original cause of action."
- 25 The following principles derived from several authorities must be satisfied by the applicant if the application for leave to issue a third-party notice is to be granted: - a) the applicant has sufficient grounds to join the respondent as a third party. - b) The subject matter between the applicant and respondent is the same as the subject matter between the plaintiff and the defendant and the original cause of action. - c) the applicant claims indemnity or contribution from the respondent. - d) the plaintiff will not suffer any prejudice if the application is granted. - e) it is in the interest of justice that the suit be heard on its merits.
In light of the facts, the Applicant vide affidavit of MONICA KOMUSINGUZI states under paragraph 3 & 4 that the company entered into a lease agreement of land situated in Silili village, Mgbere Parish, Dzaipi sub county Adjumani District with the third party, IDRO LUKE **ARAKU** who entered into a lease on behalf of his father, **ARAKU** JOSEPH. The land in question is the subject of Civil suit No. 0022 of 2021.
The court considered the pleadings and finds there is a triable issue between the defendant and third party as to the liability of the third party. There is also establishment of the nexus between
Plaintiff, Defendant and 3<sup>rd</sup> Party, the way the dispute between the defendant and the 3<sup>rd</sup> party 40 is to be tried that necessitates the court to hear from all 3 parties in full and final determination of the dispute.
In Oceanfreight (EA) Ltd vs Technomatic Ltd & Another (supra), the Court held that;
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"It is, in my opinion professionally expedient that the defendant should seek to enjoin the applicant herein, as a third party. This is because of the perceived connection between the applicant's role in the said contract and the cause of action."
I totally agree with the above authority because the third party plays a big role in the subject of the suit which the Suit land in respect of which he signed / entered into an agreement with the Applicant.
I therefore find legal basis for allowing the Application. First, the Defendant's Application is not an afterthought. The issues raised in the Third-Party Application were raised in the Defence. The Defendant pleaded in the Defence that the dealings between itself and the Plaintiff arose when the intended third party who is the son to the Plaintiff, entered into a lease agreement in respect of the suit land.
The Defendant/Applicant has provided a document annexed to the Supporting Affidavit of the Application marked as "A" which is an agreement between the Plaintiff and the intended third party. The paragraph before clause 1 provides.
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$\mathsf{S}$
"This Agreement is made on the 21<sup>st</sup> day of July 2021, between MR. IDRO LUKE ARAKU of SILILI village, Marindi Parish, Dzaipi subcounty, Adjumani district, NIN CM780100NLPG referred to $\overline{as}$ Lessor . . . . . . . . . . . . . . . . . . . and **STRABARG** INTERNATIONAL Gmbh..................referred as Lessee....
From this evidence, I am persuaded that indeed there is a triable issue between the Defendant/Applicant and the intended Third Party, leave for the third-party notice shall be 25 granted because if not, judgment will be entered against the Defendant/Applicant who in turn will file another suit against the intended third party to claim the subject amount.
It is therefore conclusive that the third-party notice should issue against the intended third party "IDRO LUKE ARAKU", to enable the Court to determine the issues in question conclusively and effectively as such the intended 3<sup>rd</sup> Party is crucial to the hearing and determination of the Plaintiff's claim against the Defendant.
Resultantly, the application is found to be meritorious and allowed. The defendant has a direct right to indemnity which expressly arises from Lease Agreement. I am therefore convinced that this is a proper case where a third-party notice should issue.
Accordingly, leave to issue a Third Party Notice together with a copy of the plaint upon the respondent is hereby granted and same should be effected within fourteen (14) days from the 35 date hereof. Costs shall abide the outcome of the main suit.
| I SO ORDER. | | |------------------------|--| | | | | Delivered At ARUA this | |
JUDGE.