Vijay & Another v Somani (Miscellaneous Application 535 of 2024) [2024] UGCommC 173 (26 April 2024)

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISC. APPLICATION NO. 535 OF 2024 (ARISING FROM CIVIL SUIT NO. 105 OF 2021)** 10 **1. VIJAY LIMDA 2. JVCKON LIMITED :::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS VERSUS**

**KARIM SOMANI :::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

# 15 **BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA RULING**

Introduction

This application was brought by way of Notice of Motion under **Section 33 of the Judicature Act, Cap. 13, Section 98 of the Civil Procedure Act,**

- 20 **Cap. 71, Order 1 Rules 10 and 13, Order 6 Rules 19 and 31,** and **Order 52 Rules 1 and 3 of the Civil Procedure Rules SI 71-1,** seeking orders that: - 1. Leave be granted to the Applicants to add Multi Consult Designs Limited as the 2nd Defendant in Civil Suit No. 105 of 2021 and that 25 the pleadings be consequently amended. - 2. The costs of this application be provided for.

#### Background

The background of this application is contained in the affidavit of Mr. 30 Limda Vijaykumar Sundarji the 1st Applicant, and is summarized below:

- 5 1. That the Applicants instituted Civil Suit No. 105 of 2021 against the Respondent in his personal capacity to recover USD 194,698, general damages, interest on the pecuniary claims from the date of filing until payment in full and costs of the suit arising out of breach of contract. - 2. That new facts have emerged which if pleaded would assist this Honorable Court in the proper resolution of all questions of contention presented in the main suit. - 3. That in his witness statement, the Respondent states that he is a shareholder and director of Multi Consult Designs Limited (the paying company), the party being sought to be added and that he hired the Applicants in that capacity and not in his personal 20 capacity. - 4. That under paragraph 4 of his witness statement, the Respondent highlights that the registered proprietor for the property on which the contested project was constructed is the paying company and 25 not Southgate Properties Limited or the Respondent. - 5. That the Respondent's capacity as the Director never came up during the negotiations of the terms of the construction of the contested 30 project. - 6. That the addition of the proposed party will not cause an undue delay in the proceedings and that its inclusion will enable the Court to effectively adjudicate on all the relevant issues before this Honorable 35 Court. - 7. That the proposed amendments are not intended to introduce a new cause of action which is inconsistent with the head suit as the

5 capacity in which the Respondent claims to represent will require this Honorable Court to adjudicate on the real questions in controversy.

In reply, Ms. Nabukalu Rita, an advocate practicing with the Respondent's Counsel's law firm well conversant with the matters pertaining to the 10 application, opposed the application contending that:

- 1. The amendment is an afterthought only intended to defeat the Respondent's defence that the Applicants have no cause of action against him. - 15 2. The amendment is a further attempt to cure the Applicants' defective plaint which initially disclosed no cause of action and this defect is not curable by any subsequent amendments. - 20 3. The amendment or series of amendments is a clear recognition that the Plaintiffs sued the wrong party and are modeling their case along the way. - 4. The 1st Applicant is on a fishing expedition yet there must be an end 25 to pleadings.

In rejoinder, the 1st Applicant averred that:

1. The affidavit in reply is incurably defective and bad at law as the application is contentious and that the deponent raises issues that are not within her knowledge.

2. The amendment is intended to add Multi Consult Designs Limited because the Respondent is claiming, in his witness statement, that he was acting on behalf of the company yet prior to the contract he insisted that the parties do not use companies in his project.

- 5 3. The amendment does not seek to introduce a new cause of action but seeks to give the company an opportunity to defend claims that its resources were misused and unsubstantiated claims that the Respondent was acting on its behalf. - 10 4. The addition of another party is to avoid multiplicity of suits. - 5. That the Respondent would not be prejudiced by the addition of the other party as the defence of the Respondent and the company would 15 not differ given the fact that the Respondent admits that the project was carried out by the 1st Applicant who was not paid.

### Representation

The Applicants were represented by M/s Adil Advocates & Solicitors jointly with M/s Ortus Advocates while the Respondent was represented by M/s

20 Sekabanja & Co. Advocates.

The parties were directed to file their submissions which they did and the same have been considered by Court.

#### Issues for Determination

In accordance with **Order 15 Rule 3 of the Civil Procedure Rules,** this 25 Court framed the issues for determination to read as follows:

- 1. Whether leave should be granted to allow the Applicants to add Multi Consult Designs Limited as a Defendant in Civil Suit No. 105 of 2021? - 30 2. What remedies are available to the parties?

Before I delve into the merits of the application, the 1st Applicant in his affidavit in rejoinder, raised a preliminary point of law to the effect that the

5 affidavit in reply is incurably defective and bad at law as it was sworn by an advocate representing the Respondent yet the application is contentious thus making her testimony hearsay.

In the case of *Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd [1969] EA 696 at 701, Justice Sir Charles Newbold*

10 stated that:

*"A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of* 15 *judicial discretion."*

Given the above, I shall proceed with the determination of the preliminary point of law so raised by Counsel for the Applicants.

Applicants' submissions

Counsel for the Applicants averred that according to **Order 19 Rule 3 of**

20 **the Civil Procedure Rules** and **Regulation 9 of the Advocates (Professional Conduct) Regulations SI 267-2,** advocates are forbidden from giving evidence in matters not within their knowledge.

Counsel submitted that under paragraphs 4, 5, 6 and 9 of the affidavit in reply, Counsel for the Respondent testifies on behalf of the Respondent 25 that the 1st Applicant contracted with the Respondent in his personal capacity and not in his capacity as the director of Multi Consult Designs Limited and because of this, there is no cause of action against the Respondent in the main suit yet this is one of the issues proposed for determination in the main suit and evidence is yet to be adduced by the

5 Defendant to show that he acted in the capacity of a director and not in his personal capacity.

Counsel contended that this is a contentious matter that requires evidence and such an opportunity can be presented at the trial for both the Respondent and Multi Consult Designs Limited.

- 10 Furthermore, Counsel submitted that if the Court was to allow the Applicants an opportunity to cross-examine the deponent on the affidavit in reply, she would not be able to speak to the facts surrounding the parties to the contract as she was not a party to the dispute or the contract making her testimony hearsay evidence which is inadmissible in Court. In - 15 conclusion, Counsel prayed that the affidavit in reply be struck off as it is hearsay and offends the rules on filing affidavit evidence.

### Respondent's submissions

Whilst relying on **Regulation 9 of the Advocates (Professional Conduct) Regulations,** Counsel for the Respondent submitted that the provision 20 was quoted out of context.

Counsel further submitted that the affidavit in reply does not contain hearsay as all the statements are from the Respondent's pleadings and that the particular deponent does not appear for the Respondent in the matter at hand. Counsel relied on the case of *Uganda Development Bank*

25 *Vs Kasirye, Byaruhanga and Co. Advocates SCCA No. 35 of 1994.*

In conclusion, Counsel for the Respondent prayed that this Court disregards the Applicants' preliminary objection.

#### 5 Applicants' submissions in rejoinder

Counsel for the Applicants submitted that throughout her testimony in the affidavit in reply, she swears that all the statements are within her knowledge and belief except for the information whose sources are disclosed yet she was not a party to the dispute. That the deponent claims

10 to derive her testimony from the pleadings yet no such information or facts are contained within those pleadings. Further, that affidavit evidence must be confined to such facts as the deponent is able to prove.

Counsel submitted that the contention is on the fact that the said Advocate does not have personal knowledge of the circumstances surrounding the

15 contract between the parties. In conclusion, Counsel for the Applicants reiterated his prayer to have the affidavit struck off.

#### Analysis and Determination

## **Regulation 9 of the Advocates (Professional Conduct) Regulations SI 276-2** stipulates that:

20 "*No advocate may appear before any Court or tribunal in any matter in which he or she has reason to believe that he or she will be required as a witness to give evidence, whether verbally or by affidavit; and if, while appearing in any matter, it becomes apparent that he or she will be required as a witness to give evidence whether verbally or by* 25 *affidavit, he or she shall not continue to appear; except that this Regulation shall not prevent an Advocate from giving evidence whether verbally or by declaration or affidavit on a formal or noncontentious matter or fact in any matter in which he or she acts or appears."*

5 The purpose of the above provision is reflected in several cases including the case of *Uganda Development Bank Vs Kasirye, Byaruhanga & Co. Advocates (supra)* wherein **Wambuzi CJ** held that:

*"It is generally accepted that the main intention of this Regulation is that an advocate should not act as Counsel and witness in the same* 10 *case."*

Considering the above authorities, it is therefore trite that an advocate should not act as Counsel and witness in the same case.

However, the above Regulation provides an exception to the effect that an advocate shall not be prevented from giving evidence whether verbally or

- 15 by declaration or affidavit on a formal or non-contentious matter or fact in any matter in which he or she acts or appears. This position was upheld in the case of *Mbarara Municipal Council Vs Jetha Brothers Ltd Misc. App No.10 of 2021*, in which the Supreme Court held that: - *"In my view, affidavits can be sworn by anyone to prove a set of facts* 20 *and an advocate is not an exception. An advocate is therefore not prohibited to swear an affidavit where necessary, especially on matters that are well within his or her knowledge."*

In the case of *Electro-Maxx Uganda Ltd Vs Oryx Oil Uganda Ltd, HCMA No.251 of 2020,* **Hon. Justice Boniface Wamala** held that:

25 "*It is clear to me that the above Regulation is not meant to bar an advocate from giving evidence on behalf of a client. It is meant to bar an advocate from appearing before a Court on behalf of a client when the advocate is a witness or a potential witness in a contentious matter."*

- 5 In the instant case, the issue at hand is whether the affidavit in reply contains contentious averments and whether the same are hearsay. Counsel for the Applicants contends that paragraphs 4, 5, 6 and 9 of the affidavit in reply contain contentious averments. - I have read the above paragraphs and I disagree with Counsel for the 10 Applicants' submissions that Counsel for the Respondent was testifying on behalf of the Respondent that the 1st Applicant contracted with the Respondent in his personal capacity and not as a director of Multi Consult Designs Limited.

My understanding of paragraphs 4, 5 and 9 in issue is that Counsel for 15 the Respondent was giving grounds in her belief to oppose the application whereas, under paragraph 6, the deponent disclosed the source of her testimony.

Further, as a law firm representing the Respondent, the firm is in position to know the Respondent's defence as well as the defects in the plaint as

20 per the Respondent's pleadings in the main suit which are the subject of the contents in paragraphs 4, 5, 6, and 9 of the affidavit in reply. In the premises, the affidavit in reply does not contain contentious matters or hearsay statements to render it defective to be struck off record.

Therefore, I find no merit in this preliminary objection and the same is 25 accordingly overruled.

I shall now proceed to determine the application on its merits.

Issue No.1: Whether leave should be granted to allow the Applicants to add Multi Consult Designs Limited as a Defendant in Civil Suit No. 105 of 2021?

## 5 Applicants' submissions

Counsel for the Applicants dwelt more on the issue of amendment of pleadings than on the issue of adding Multi Consult Designs Limited as a Defendant. Counsel submitted that this Court has powers to grant orders for amendment and the principles to be relied upon were laid down in the

# 10 case of *Gaso Transport Services (Bus) Ltd Vs Martin Adala Obene SCCA No. 4 of 1994.*

Counsel averred that as a general rule, amendment of pleadings should be allowed at any stage of the proceedings where Court is satisfied that the amendment will enable the real question in controversy between the 15 parties to be adjudicated upon and no injustice would be occasioned to the opposite party.

Counsel further submitted that in the case at hand, the Applicants seek to add the 2nd Defendant because the Respondent conveniently after the suit was filed, stated that he was acting on behalf of the proposed 2nd

20 Defendant yet he was sued in his personal capacity as the parties had acted in their personal capacities. Counsel for the Applicants also submitted that the addition of the proposed 2nd Defendant to the main suit would avoid multiplicity of suits.

In conclusion, Counsel for the Applicants prayed that this application be 25 granted in the interest of justice and fairness to enable the Court to adjudicate the real questions in controversy.

## Respondent's submissions

Counsel for the Respondent submitted that the application should be denied as it will substantially change the cause of action and that it is 30 intended to defeat the Defendant's defence and that it is malafide.

5 Counsel submitted that if the amendment is granted, it will prejudice the Respondent's defence in the main suit that the Applicant has no cause of action against the Respondent thus occasioning an injustice.

Counsel further submitted that the application is intended to cure a defective plaint as it did not disclose a cause of action and that the 10 Applicants are merely on a fishing expedition.

Counsel relied on the cases of *Assa Abloy (U) Ltd Vs John Mboizi Misc. Application No. 784 of 2021, Hon. Gerald Kafureeka Karuhanga and Another Vs Attorney General and Others Misc. Cause No. 60 of 2015* and *Abdulrahman Elamin Vs Dhabi Group and Others Civil Appeal* 15 *No. 215 of 2013.*

In conclusion, Counsel for the Respondent prayed that the application be dismissed as the party being sought to be added has no bearing on the real issue in controversy.

Applicants' submissions in rejoinder

20 Counsel for the Applicants submitted that the Respondent's contention that the application is intended to change the cause of action and that it is malafide does not arise in the instant case as at the time of filing the suit, all the documents showed that the Respondent was acting in his personal capacity and the allegation that he was acting in the capacity of 25 a director of the proposed 2nd Defendant came up when the Respondent filed his witness statement.

Counsel also reiterated that the application is not intended to defeat the Respondent's defence but only seeks to allow the parties and the Court to examine all the issues surrounding the main suit to a logical conclusion.

30 That the Respondent claims that the suit is in the name of a wrong party

5 however, the issues of personality to sue or locus standi are not the subject of this application and thus should not be smuggled in.

Analysis and Determination

#### **Order 1 Rule 10 (2) of the Civil Procedure Rules** provides that:

*"The court may at any stage of the proceedings either upon or without* 10 *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 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* 15 *order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added."*

From the above, it is illustrated that the Court is embraced with discretionary powers to remove or add a party to a suit on its motion. The same has been stated in several decisions including *Kololo Curing Co.*

- 20 *Ltd Vs West Mengo Co-op Union Ltd [1981] HCB 60.* However, such discretion is to be exercised judiciously and as shown in the case of *Yahaya Kariisa Vs Attorney General & Anor SCCA No.7 of 1994 [1997] HCB 29*, it is aimed at enabling the Court to deal with matters to their finality to curb multiplicity of suits. - 25 In the case of *Departed Asians Property Custodian Board Vs Jaffer Brothers Ltd (SCCA) No. 9 of 1998,* the Supreme Court considered **Rule 10 (2) of Order 1 of the Civil Procedure Rules** and held that:

"*This rule is similar to the English R. S. C Order 16 r11, under which the case of Amon Vs Raphael Tuck & Sons Ltd (1956)1 ALL ER* 30 *considered and decided that a party may be joined in a suit, not*

``` ```

5 *because there is a cause of action against it, but because that party's presence is necessary in order to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter*."

*Justice Mulenga, JSC (RIP)*, gave consideration for adding a party to a 10 suit and stated that:

"*For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions involved in the suit one of two things has to be shown. Either it has to be shown that the orders, which the plaintiff seeks in the suit would* 15 *legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualifies, (on application of a defendant) to be joined as a codefendant, where it is shown that the defendant cannot effectually set* 20 *up a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.*"

I agree with Counsel for the Applicants that issues of personality to sue or locus standi are not the subject of this application. The position would have been different if the Applicants were seeking to remove the only 25 Defendant from the pleadings and replace him with another on grounds that there was no cause of action against the initial Defendant. This is an application to add a Defendant to the main suit.

The Applicants filed Civil Suit No. 105 of 2021 against the Respondent seeking to recover USD 194,698, general damages, interest, and costs all 30 arising from breach of contract. Subsequently, the Respondent filed his witness statement in which he states that in his capacity as a director of

- 5 the proposed 2nd Defendant, he engaged the 1st Applicant for the provision of construction services and that much as the property was registered in the names of M/s Southgate Properties Limited, the ultimate beneficiary was M/s Multi Consult Designs Limited, the proposed 2nd Defendant. - The Respondent further stated under paragraph 7 of his witness statement 10 that payment to the 1st Applicant was to be made directly from the project owner, the proposed 2nd Defendant. Lastly, under paragraph 10 of his witness statement, the Respondent stated that he never entered into any contractual arrangements with the Applicants in respect of the project in issue however there were dealings between the 1st Applicant and the 15 proposed 2nd Defendant.

Counsel for the Respondent opposed the application contending that the application is an afterthought aiming at curing a defective plaint as it does not disclose a cause of action.

A look at the plaint in question under paragraph 5, shows that the 20 Applicants/Plaintiffs claim to have entered into a construction agreement with the Respondent without any written agreement. That the agreement was executed between the 2nd Applicant and the Respondent and that the monies made by the Respondent were received in the 1st Applicant's name. The Plaintiffs were paid USD 1,127,000 out of the agreed USD 1,321,698 25 leaving a balance of USD 194,698 being monies sought to be recovered. According to the Respondent's witness statement in the main suit, he acknowledges the contract under paragraph 2 but disputes having executed the said agreement in his personal capacity. He alleges that he executed the construction agreement on behalf of Multi Consult Designs 30 Limited, the proposed 2nd Defendant. In my view, the plaint discloses a cause of action against the Respondent however, the Respondent now

5 claims that liability lies on someone else other than him as he executed the construction agreement in the capacity of a director of the proposed 2nd Defendant and not his personal capacity. As was held in the case of *Departed Asians Property Custodian Board Vs Jaffer Brothers Ltd (supra),* a party may be joined in a suit because that party's presence is 10 necessary to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the cause or matter.

In the matter at hand, it would be necessary for the Court to add Multi Consult Designs Limited as the 2nd Defendant in the main suit so that the Court can effectually and completely adjudicate upon and settle all the

- 15 questions involved in the main suit such as whether the construction agreement was executed between the Applicants and the Respondent or Multi Consult Designs Limited. This would not change the Respondent's defence nor would it change the cause of action in the plaint. - In the interest of avoiding multiplicity of suits and effectually and 20 completely adjudicating upon and settling all the questions involved in Civil Suit No. 105 of 2021 and in accordance with **Section 33 of the Judicature Act, Cap.13**, Multi Consult Designs Limited is hereby added as the 2nd Defendant in Civil Suit No. 105 of 2021.

Issue No. 1 is hereby answered in the affirmative.

25 Issue No. 2: What remedies are available to the parties?

## **Order 1 Rule 10 (4) of the Civil Procedure Rules** provides that:

*"Where a defendant is added or substituted, the plaint shall, unless the court otherwise directs, be amended in such a manner as may be necessary, and amended copies of the summons and of the plaint*

5 *shall be served on the new defendant, and, if the court thinks fit, on the original defendants."*

In light of the above provision, the Applicants are hereby granted an order to amend the pleadings.

In the premises, this application is granted with the following orders:

- 10 1. Leave is hereby granted to the Applicants to add Multi Consult Designs Limited as the 2nd Defendant to Civil Suit No. 105 of 2021, and to amend the pleadings accordingly and serve the Defendants with the amended plaint within seven (7) days from the date of this Ruling. - 15 2. The added Defendant should file and serve its Written Statement of Defence within fifteen (15) days after receipt of the amended plaint and a rejoinder to be filed within seven (7) days after receipt of the Written Statement of Defence. - 3. Costs of this application shall be in the cause. - 20 I so order.

Dated, signed and delivered this **26th** day of **April**, **2024.**

Patience T. E. Rubagumya **JUDGE** 26/04/2024

# 5 **Ruling read in Chambers**

26th April, 2024

9am

# **Attendance:**

10 Mr. Amos Masiko, Counsel for the Applicants. Counsel for the Respondent is absent. Parties are absent.

Ms. Mary Wokape, Court Clerk.

Patience T. E. Rubagumya **JUDGE** 26/04/2024

15