Thalion International Limited v Vivo Energy Uganda Limited (Civil Application 16 of 2022) [2022] UGSC 36 (16 June 2022)

#### THE REPUBLICOF UGANDA

## IN THE SUPREME COURT OF UGANDA AT I(AMPALA

# CML APPLICATION NO. 16 OF 2022 ?-ttru\te () q \ea2-

#### BETWEEN

# THALION INTERNATIONAL LIMITED.... ... APPLICANT

#### AND

VIVO ENERGY UGANDA LIMITED.... .... RESPONDENT

(Application arising from the Judgment of the Court of Appeal of Uganda at Kampala before Kiryabwire, Mugenyi M and Kasule JJA dated 2Ou Decembet 2O2Ll

### BEFORT MWONDHA JSC, SINGLE JUSTICE

### RULING OF THE COURT

This Application was brought under Rule (2)1n42 and 43 of the Judicature (Supreme Court) Rules seeking for orders that:

- 1. The applicant be substituted to replace Mercator Enterprises Limited the appellant in Court of Appeal Civil Appeal No. 107 of 2O77for the purposes of hearing and disposal of this Application and proper conduct of the intended appeal from the Judgment and decision of the Court of Appeal. - 2. The respondent be substituted as Vivo Energr Uganda Limited to replace Shell Uganda Limited, the respondent in Court of Appeal Civil Appeal No. 107 of 2Ol7 for the purposes of hearing and disposal of this Application and the proper conduct of the intended appeal arising from the Judgment and decision of the Court of Appeal in Civil Appeal No. 1O7 of 2Ol7 . - 3. The pleadings and all documents filed in Court be deemed to reflect the said amendment.

4. The costs of and incidental to this Application abide by the result of appeal.

The Notice of Motion was supported by the affidavit deponed by one Samash Nathu and briefly stated as follows: -

- 1) The Judgment from the Court of Appeal dated 20th January 202 1 was rendered in favour Mercator Enterprises Limited as appellant and against Shell Uganda Limited as respondent. - 2l On )4a January 2O13, the respondent in Court of Appeal Civil Appeal No. 107 of 2Ol7 ceased to operate under the name and auspices of Shell Uganda Limited and is now operating as Vivo Energr Uganda Limited. - 3) On 31\$ Juty 20 19, the appellant in Court of Appeal Civil Appeal No. 1O7 of 2Ol7 (Mercator Enterprises Limited) duly assigned its rights in this matter to the applicant above stated and a deed of assignment between the parties was attached as Annexture ,,A'. - 4) That the applicant intends to file an appeal against the decision in Civil Appeal No. 107 of 2Ol7 with the proper parties on record. - 5) That it's in the interests of Justice that the Application is granted. - 6) That the parties have been litigating under the names Mercator Enterprises Limited and Shell Uganda Limited. A Notice of Appeal was attached marked "A" received by the Court of Appeal on Sth Aprrl 2022 and endorsed by the Registry on 7th April 2022. - 7) That on24th January 2O13, the named respondent in the Court of Appeal Civil Appeal No. 107 of 2Ol7 changed its name from Shell Uganda Limited to Vivo Enerry Uganda Limited (Attached

as Annexture "B" is the gazette Notice No. 97 of 2012 published on 15<sup>th</sup> February 2013 and a corrigendum thereto published on $1<sup>st</sup>$ March 2013 attesting to the change of name, approval thereof by the Registrar of Companies and publication thereof in the Uganda Gazette.

- 8) On 31<sup>st</sup> July 2019, the named Applicant herein and the named appellant in the Court of Appeal Civil Appeal No. 107 of 2017, signed sealed and delivered a Deed of Assignment assigning all its rights, title and interest in this litigation to Thalion International Limited. A copy of the deed was attached and marked Annexture "C" - 9) That consequent to these changes, the said Vivo Energy Uganda Limited is the true and lawful successor in title to the respondent in Civil Appeal No. 107 of 2017 and the said Thalion International Limited is the true and lawful successor in title of the named appellant in Civil Appeal No. 107 of 2017. - $10)$ That the applicant intends to appeal the decision of the Court of Appeal in the above already mentioned appeal. - That in light of the foregoing, it is necessary and in the $11)$ interests of Justice that this Court grants the orders sought of substituting the named parties in Civil Appeal No. 107 of 2017 to reflect the correct parties as already stated above. - That there is no prejudice to be occasioned to the $12)$ respondent as to the names in controversy or on the intended appeal.

The respondent filed a reply in opposition to the Application deponed by one Stephen Chomi. Chomi stated among others as follows: -

1) That the respondent was formerly called Shell Uganda Limited but later changed in 2012 to Vivo Energy Uganda Limited.

- 2) That Mercator Enterprises Limited has been represented by Nyanzi, Kiboneka & Mbabazi Advocates (Copy of the Notice of Instructions were attached) - 3) That the applicant has filed multiple applications to be substituted as a party in dispute (Copy of the Notice of Motion 202 of 2021 High Court and Notice of Motion 165 of 2020 Court of Appeal attached marked B & C respectively) - 4) That the Applicant and Mercator Enterprises Limited are engaging in abuse of Court process by filing multiple applications on the same subject matter. - 5) No appeal has been filed in the names of the Applicant in this Court.

The Applicant filed a rejoinder and additional affidavit.

### **Representation**

Mr. Joel Olwenyi represented the Applicant. The Respondent's Counsel was not present in Court at the hearing.

However, Counsel for the Applicant undertook to serve and inform counsel for the Respondent what transpired in Court namely the Court directions for filing submissions. According to the Court record, counsel for the Applicant informed the Respondent's counsel and as a result, they filed submissions and earlier they had filed a reply to the Notice of Motion on ECCMIS.

### **Submissions**

Counsel for the applicant submitted on the law applicable on the subject of substitution of parties as being Rule $2$ (2) of this Court Rules, which he stated that it allows this Court to grant orders in the interests of Justice.

Counsel also relied on Rules 42 and 43 of this Court Rules that they provide the form of the instant application, which may be by motion and one or two supporting affidavits of the applicant.

Counsel added on Rule 50 that enables Applications to be made to a single Judge of this Court. Counsel argued that there was Judgment rendered in favour of Mercator Enterprises Limited against Shell Uganda Limited that is subject to an intended appeal as deponed in paragraph 3 of the affidavit in support as Annexture "A".

That paragraph 3 shows that the Respondent has since legally changed its operational name to Vivo energy(U) limited by a gazette notice No. 97 of 2012 dated 15<sup>th</sup> Feb 2013 and corrigendum there to published on 1<sup>st</sup> March, 2013. That this position is confirmed by the affidavit of the respondent in paragraph 3 in the reply.

Counsel submitted that the applicant was duly assigned rights in this matter by the appellant Mercator Enterprises Limited in civil appeal 107/2017 in the lower court in a deed of assignment duly signed, sealed delivered and duly attested by all parties

Counsel further submitted that paragraph 4 shows that both the applicant and respondent are the true lawful successors in title to the named parties and as such the record of the intended appeal should reflect the said changes to enable proper adjudication and in the interest of justice

Counsel submitted that Order 24 Rule 9(1) of the Civil Procedure Rules is instructive in applications of this nature. He further submitted that they are buttressed by the Indian Code of Civil procedure rules order 22 rule 10 that imports that an appeal or second appeal can be continued by or against a person who has acquired an interest of one of the parties to the appeal in the subject matter in a suit.

Counsel submitted that there's no prior contentious matter in this country's jurisprudence regarding matters of this nature. Most are consented to and rarely contested. The latest is the intended appeal case in this court of Catherine Muwonge Magezi vs Allinus Properties(u) Ltd Misc App. No. 03 of 2022 which was filed to enable the intended appeal reflect the correct names of litigants. It resulted in a consent order.

Counsel further submitted that applications to substitute parties can be brought at any stage of the proceedings even at the stage of intended appeal as enumerated in the case of **Catherine Muwonge** (Supra).

Counsel invited this court to grant the orders sought since the respondent confirmed the change of their name and the applicant had been granted a deed of assignment.

## **Respondent's submissions**

Counsel for the respondent opposed the applicant's submission and stated that the applicant Thalion International Ltd is a stranger to the judgment of the Court of Appeal and to the Notice of appeal. Counsel submitted that it is Mercator Enterprises Limited to seek to be substituted with Thalion International Limited as the outgoing intended appellant.

Counsel submitted that Mercator Enterprise Limited filed this application in the High court and there is another application by Mercator Enterprises Limited in the Court of Appeal. In those two applications Mercator Enterprises Limited seeks to substitute itself in the suit/Appeal with Thalion International Limited.

Counsel further submitted that those two applications in the lower Courts are the same since the main issue is substitution of Thalion in place of Mercator Enterprises Limited.

Counsel submitted that Shell Uganda Limited changed its name to Vivo Energy Uganda Limited. There was no question of substitution of one party as a respondent with another but rather a change of name only.

Counsel further submitted that filing multiple proceedings in different courts amounted to abuse of court process and the same should be dismissed with costs.

## Applicant's submission in rejoinder

Counsel submitted that the respondent conceded that the applicant received a deed of assignment from the predecessor in title Mercator Enterprises Limited and also confirmed that Vivo Energy Limited changed its name from shell (Uganda) Limited.

Counsel submitted that the rest of the respondent's submissions refer to procedural aspects which were misconceived and lacking merit.

Counsel argued that the Indian Civil Procedure Code Order 22 Rule 10 is equivalent to order 24 Rule 9 of the Civil Procedure Rules in this country which states....."in cases of assignments, creation of interest or demolition of an interest other than by death, it would normally be the party in whose favour the assigned has been made or the interest created or had devolved who would apply under Rule 10" (according to Dr S Venka taraman the author of the Civil Procedure Code of India).

Counsel therefore, submitted that the applicant was the right party to the intended appeal to file the application in order to stream line the appeal in the names of the proper parties. That in paragraph 7 of the affidavit in reply, the respondent averred that there is no appeal brought in the names of the applicant which was not true. Counsel reiterated his prayer that the application be granted in the interest of justice.

#### Consideration of the application

This Application was brought under Rules 2(2), 42 and 43 of this Court rules.

$\mathcal{L}$

Counsel for the applicant framed only 2 issues

(1) Whether parties ought to be substituted

(2) Costs.<br>I have carefully considered the submissions of both counsel and the following came out clearly: -

(1) The respondent conceded and does not deny that they changed the name they litigated on in the lower Courts of Shell Uganda Limited in Civil Appeal No. 107 of 2017, Mercator Enterprises Limited Vs Shell Uganda Limited. By Annexture "A" of the

additional affidavit in support of the Motion, the certified Judgment of Court shows the appellant therein as the Respondent before the name was changed to Vivo Energy Uganda Limited.

- (2) The respondent did not oppose the fact that the Appellant duly assigned its rights in the matter now before Court in favour of the Applicant and a deed of assignment between the parties was annexed and marked Annexture "A" - (3) The applicant intends to file an appeal against the decision of the Court of Appeal and has henceforth filed a Notice of Appeal against the Judgment of the Court of Appeal as deponed and stated in paragraph 2 of the additional affidavit in support by one Samash Nathu. - (4) There are no strong reasons the respondent has raised to compel this Court not to grant the orders sought for.

$48$

I observed that the Applicant did not respond or did not give an explanation why there were two Applications on the same subject filed in the High Court, Court of Appeal and the decisions or outcomes of the same were never mentioned at all, whether they were denied or not and the reasons for either decision.

I am of the view that it has no serious legal consequences much as I agree that this was an abuse of Court process but was not fatal and it caused no prejudice to the respondent.

(5)I was satisfied that Mercator Enterprises Limited was a successful party in Civil Appeal No.107 of 2017 against Shell Uganda Limited which had long changed its name to Vivo Energy Uganda Limited.

In order to have a proper hearing and proper conduct of the intended appeal from the Judgment delivered on 20<sup>th</sup> December 2021 in Court of Appeal Civil Appeal No.107 of 2017, the Application is granted and or allowed.

So, issue number one is answered in the affirmative. Accordingly, the orders as sought and prayed for in the motion are granted with costs to abide the result of the appeal.

Dated at Kampala this $16^{th}$ day of June 2022.

Muneudul<br>MWONDHA

JUSTICE OF THE SUPREME COURT