KEITH BUSINGYE LAW GUIDE.
PARTIES
TO A SUIT
A party to a suit may be a
plaintiff, defendant, applicant or appellant, respondent among others depending
on the type of proceedings.
Normally a party is a person who
on the record of the court has commenced a proceeding or against whom a
proceeding has been commenced or who has been added by order of court.
The term party may also be used
to designate the person seeking to present a plaint or establish a cause of action
as well as the person against whom it is sought to impose a corresponding duty
or liability.
In a representative action a
person represented but not named as a party is also considered to be a party
and such a person may be substituted and named as a party.
To be a party, a person must be
able to maintain a cause of action or incur a liability to a person who has a
cause of action.
CAPACITY
TO SUE OR BE SUED
The determination of whether a
person is capable of suing or being sued is governed by the substantive law.
While most natural persons may
sue or be sued, limitations exist with regard to certain types of natural
persons such as children, persons of unsound mind, Aliens and sovereign states.
Natural
persons
Natural persons who are mentally
competent may sue or be sued without limitation except in cases of death of
such a person, when he or she may cease to exist as a party and actions on
behalf of his or her estate continued in a representative proceeding by the
executors or administrators of the estate.
While alive, a natural person
may be a party to a proceeding in his given, assumed or fictitious name. When an alias is used a party should be
described by using his proper names followed by the alias.
When a father and son have the
same names, it will generally be assumed in absence of a prefix that the father
is intended.
NB:
When a son is sued or daughter
is sued, the prefixes s/o or d/o will be used respectively.
A party must be described by
name and not mere descriptions such as administrators of X’s estate without
naming the individual administrators.
It is not legally possible for
an agent to institute a suit in his or her own name without the principal’s
authority.
This was held in the case of Oriental
Insurance Brokers Ltd Vs Trans Ocean Uganda Ltd H.C.C.S. No. 250/93 unreported.
See generally Order 3 of the CPR
regarding recognised agents.
SUITS BY
MINORS
Minors cannot bring suits of
their own accord until they attain the age of majority. A minor is a person who has not attained the
age of majority which may either be 18 or 21 depending on the jurisdiction.
Similarly, a minor cannot be sued in his
or her own accord.
See: Bibonde v Wasswa [1974]
HCB 120; Kiddu Musisi v Lyamulemye [1964] HCB 81; Kimera v Jiwani [1971] ULR
194; Art. 257(1) (c) Constitution, 1995
In such circumstances a minor
sues by his or her next friend or defends by his or her guardian ad item.
See: Kabatooro v Namatovu
[1975] HCB 159
Order 32 Rule 1 of the Civil
Procedure Rulesrequires that every suit by a minor must be instituted in his or
her name by a next friend.
A next friend must sign a
written authority which is to be filed together with the plaint (Order 32 rule
1(2) CPR. The next friend or guardian ad
litem must act by an advocate who must certify that he knows or believes the
person to whom the certificate relates to be a minor and that the person
consenting to be a next friend or guardian ad item has no interest in the
action which is adverse to that of a minor.
See: Kasifa Kiwanuka v
Sulaiman Lubowa [1972] HCB 210
Order 1 rule 10(3) CPR provides
that:
“No person shall be added as a plaintiff suing without a next friend or
as the next friend of a plaintiff under any disability without his or her
consent in writing to being added.”
According to the case of Jingo v Kangiza 1974 H.C.B. 294, Court held that pleadings filed on
behalf of a minor without authority of a next friend will be taken off the file
by the court. Where a minor is
represented by an advocate, and there is no authority of a next friend, if the
plaint is taken off the file, court may
order costs to be paid personally by counsel.
See: Order 32 rule 2(1) CPR.
The person appointed as a next
friend may be personally liable for costs if they are awarded against the
plaintiff although he has the right of indemnity against the minor. On the other hand, a guardian ad item is
personally liable for costs only where he has been guilty of negligence or
misconduct.
The next friend is an officer of
the court appointed to look after the interests of an infant in the conduct of
proceedings. A next friend has no power
to consent to the dismissal of an action or to the withdrawal of the suit
without the court’s approval.
A next friend cannot retire
without the consent of the court and it is immaterial that all parties to the
action have given their consent. A
person retiring from being a next friend may be required by the court to give
security for costs incurred during his term of office. Court can grant an
application by next friend to withdraw on the ground that he or she will be
liable for costs (Order 32 rule 8).
Where an infant who is a
plaintiff in an existing action comes of age his next friend should not take
any further proceedings in the action.
The former infant or minor may either adopt or repudiate the proceedings
within a reasonable time. On electing to adopt the proceedings an infant in
becoming of age should file in the registry of court a notice to the effect
that he has attained the age of majority and adopts the proceedings begun or
defended on his/her behalf. A copy of
this notice should be delivered on the other parties (Order 32 rule 12).
MENTALLY
INCOMPETENT PERSONS
These may include idiots and
lunatics. An idiot is one who has
suffered incapacity from birth (usually has an IQ of about 25 or under a mental
age of less than 3 years) where as a lunatic is one who has become insane after
birth and where incapacity is temporally.
In addition there is a general term of madness which denotes incapacity
of mind that is complete and permanent and all these are normally compounded
under a general term persons of ‘unsound
mind’.
Under Order 32 Rule 15 mentally
incompetent personsmay commence an action in the same way as a minor through a
next friend or defend a suit by a guardian ad item.
See: Kaggwa v AG [1971] H.C.B 333;
Where a mentally incompetent
person without a representative commences proceedings, an application should be
made by a defendant to stay the proceedings until a next friend is
appointed. Where there is a doubt or dispute
as to mental disability of a party, an application should be made to the court
to determine if incompetence exists.
This was stated in the case of Porter
V Porter (1888) 37 Ch. D 420.
Where the party becomes mentally
incompetent during the pendency of a proceeding, the proceeding is stayed but
not discontinued since the incompetent party is unable to revoke the previous
authority given to his counsel to commence or defend the proceeding.
See: Bakari v Akamba Republic Bus Service [1976] HCB 323
Where a next friend is appointed
during the incompetence and later the incompetent person recovers, he or she
should apply for an order to discharge the appointment of a next friend or
guardian ad item.
COMPANIES
AND STATUTORY PERSONS AS PARTIES
This is generally governed by Order 29 of the Civil Procedure Rules.
An incorporated company can be a party to an action. Any company incorporated by an Act of
parliament may sue or be sued in its corporate name. Before institution of an action involving a
company, it is advisable to ascertain from the Registrar of Companies or from
the Act of incorporation the proper and correct names for the company. If the correct name of the corporate party is
not used in the pleadings and summons, then it is possible that that company
may raise an objection that the corporate party sued was non-existent.
The change of a name of a
company does not render defective any legal proceedings instituted by or
against the company. Any legal
proceedings may be continued or commenced against the company by its new name.
To bring a suit in the name of a
company there has to be a special resolution first by the company authorizing
the institution of such a suit. However
where a director Instructs an advocate, then he is deemed to have authority to
authorize the institution of such a suit even if there is no resolution.
In the case Bugerere Coffee Growersv Sebaduka 1971EA 147,court noted that for a
company to bring a suit, it is necessary that a resolution must be passed
either at the general board meeting or at the general assembly meeting and this
must be reflected in the minutes. This
case further noted that where an advocate brings proceedings without the
authorization of the company then he becomes personally liable to the
defendants for costs of the action.
However in the case of United Assurance Company Ltd SCCA No. 1/86 the Wambuzi, C.J,
held against the decision in Sebaduka’s case and noted that a resolution
was only one way of proving the decision of the Board of Directors and that
unless the law specifically insisted on a resolution, he was not prepared to
insist on it. He noted that authority to
bring an action in the name of the company is not one of those instances where
the Company’s Act required a resolution.
Where a company is in
liquidation or in receivership, the liquidator/receiver may sue in the name of
the company. A corporation which has
ceased to have any juristic existence cannot sue or be sued.
GOVERNMENT
All civil proceedings by the
state are instituted and prosecuted in accordance with the Government
Proceedings Act. Any person has a right
to sue government, subject to the Government Proceedings Act. Section 10 of the
G.P.A. provides that:
“Civil proceedings by or
against the Government shall be instituted by or against the Attorney General.”
REPRESENTATIVE
PARTIES
DECEASED
PERSONS
A deceased person cannot
commence or defend an action. In the
case of an estate of a deceased person, administrators or executors become the
proper persons or parties to bring an action or to defend an action of a deceased
person. The rules of court provide that administrators or executors of the
estate of a deceased person may sue or be sued on behalf of the estate without
joining any of the beneficiaries (Order 31 rule 1 CPR).
The administrator of an estate
of a deceased person is appointed by a grant of letters of administration while
the executor is named in a will and is appointed by court through the grant of
probate in accordance with the Succession Act.
When administration of the
estate is not taken out by the immediate members of the family as specified in
the Succession Act a creditor or a person having a cause of action against the
estate may apply for the grant (See sections 202 and 203 of the Succession Act
and section 4 of the Administrator General’s Act).
Where there is more than one administrator
all must be made parties (Order 31 rule 2 CPR).
TRUSTEES
A trustee is a person engaged in
Administrative duties with regard to property entrusted to him for the benefit
of others. Trustees may be individuals
or corporations who have been given power so to act.
Section 1(3) of the Trustees
Incorporation Act, Cap. 165 states that:
“The trustees or
trustee shall thereupon become a body corporate by the name described in the
certificate, and shall have perpetual succession and a common seal, and power to sue and be sued in the
corporate name,....”
A person may be appointed a trustee under a
will. Where a person is appointed in a
dual capacity of an executor and trustee, the estate of the deceased person is
vested in the executor first and after the fulfilment of his duties and an
executor, he thereafter becomes a trustee to carry out the trust set up under
the will including the distribution of the estate to the beneficiaries.
Another person may become a
trustee under an express instrument or under the law of Agency, bailment or
trusts and also by law under the Public Trustee Act. Section 2 of the Public
Trustee Act, Cap. 161 states that;
“The public trustee
shall be a corporation sole by the name of the public trustee and as such shall
have perpetual succession and an official seal, and may sue and be sued in his or her corporate name, but any
instrument sealed by him or her shall not, by reason of his or her using a
seal, be rendered liable to higher stamp duty than if he or she were an individual.”
UNINCORPORATED
ASSOCIATIONS
These may include, clubs, trade
unions, employer associations or General associations. An association consists of a number of
persons voluntarily united together by common interest in order to promote
certain objectives for their mutual benefit.
A club is an association of people, formed for a common purpose other
than profit making, such as promoting knowledge, art or social activities.
In such situations a member does
not become liable to pay funds of a club beyond the subscription fee required
by the constitution of the club.
An association or club that has
not obtained corporate or quasi corporate status by statute has no legal
existence apart from its members. It s
not a legal entity nor is it an association of persons carrying on business in
common with a view of making profit.
An unincorporated association is
not a legal entity capable of suing or being sued. Any proceeding against such an entity is a
nullity and not a mere irregularity which may be waived by filing the defence.
However trustees of the property
of an unincorporated association may sue or be sued in respect of the property
vested in them since the trustees are considered to represent the members’
beneficial interest in the property.
See also: Nakawa/Naguru
Residents Association v AG and ULC, HCCS No. 146/2011 – commentary on P.Os
PARTNERSHIPS
Under Order 30 rule 1 CPR, partnerships may sue or be sued in the firms’
name or alternatively in the names of the individual partners. Whenever there is doubt about the membership
of the partnership, it is then advisable to issue court process against such a
firm in its firm name.
See: Gatete & Another v Kyobe, SCCA No.7 of 2005.
With leave of the court, the
judgment is generally enforceable against any other partner within the
jurisdiction but a foreign partner many have to be sued individually.
It is always good practice in
drafting pleadings to state in the plaint more than the firm name and to give
the names of the partners followed with words “trading as” and then followed by
the firm name.
ALIENS
These are governed by section 57
of the CPA which states that:
“When aliens may sue.
(1) Alien enemies residing in Uganda with
the permission of the Minister, and alien friends, may sue in the courts of
Uganda as if they were citizens of a Commonwealth country.
(2) No alien enemy residing in Uganda
without such permission, or residing in a foreign country, shall sue in any
such courts.
Explanation.—Every person
residing in a foreign country the Government of which is at war with the
Government of Uganda, and carrying on business in that country without a
licence in that behalf under the hand of the Minister, shall, for the purpose
of subsection (2), be deemed to be an alien enemy residing in a foreign country.”
Foreign
states
This governed by section 58 of
the CPA which provides that:
“When foreign State
may sue.
(1) A foreign State may sue in any court of
Uganda if—
(a) that State has
been recognised by the Government;
(b) the object of
the suit is to enforce a private right vested in the head of that State or in
any officer of that State in his or her public capacity.
(2) Every court shall take judicial notice
of the fact that such foreign State has or has not been recognised by the
Government.”
JOINDER
AND SUBSTITUTION OF PARTIES
The rules of the court provide
the following grounds for voluntary or mandatory joinder of two or more parties
in a proceeding.
1)
Where there is a right to relief in respect of the
same act or transaction or series of acts or transactions whether joint,
several or in alternative.
2)
Where a common question of law or fact would arise
if separate suits were brought by the parties.
3)
Leave of the court obtained: where the leave of
court is obtained, parties may be joined in an action.
4)
Joint Claimants: where persons are joint claimants,
they may be joined as plaintiffs.
5)
Joint and Several Liability: where persons are
jointly and severally liable for the relief sought, they need not be joined as
defendants.
6)
Presence of a person promotes administration of
justice: where the presence of a person as a party to a proceeding may promote
the convenient administration of justice, then such a party may be joined to
the proceedings.
7)
Person’s presence is necessary: where a person’s presence
is necessary as a party to enable the court to effectively adjudicate upon the
issues or where such a person is required by statute, then such a person may be
joined on a party.
8)
Doubt against whom relief is sought: under Order 1
Rule 7, where there is doubt as to
the persons from whom the plaintiff is entitled to obtain redress, he may join
two or more defendants. However under Order 1 rule 2, court has power to order separate trials if joinder of plaintiffs
may embarrass or delay the trial.
JOINDER
See: Order 1 Rules 1 ,3 &
9 CPR
In applying the rules, one must
keep in mind that a person may be joined as a party in the proceedings:
1.
By a defendant after proceedings with leave of the
court.
2.
By a plaintiff after proceedings with leave of the
court.
3.
By the court on an application of any party or by
an intervener or the court may on its own motion add a party.
In joining parties the
fundamental purpose is to enable court to deal with matters brought before it
and avoid multiplicity of pleadings.
A party joined to an action must
have an interest in litigation. An
original plaintiff with no cause of action cannot join a person who may have a
cause of action.
JOINDER
OF A DEFENDANT
Order 1 rule 10 provides that:
“(1) Where a suit has been instituted in the name of the wrong person as
plaintiff, or where it is doubtful whether it has been instituted in the name
of the right plaintiff, the court may at any stage of the suit, if satisfied
that the suit has been instituted through a bona fide mistake, and
that it is
necessary for the determination of the real matter in dispute to do so, order
any other person to be substituted or added as plaintiff upon such terms as the
court thinks fit.
(2) 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 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 order to enable the court effectually and completely
to adjudicate upon and settle all questions involved in the suit, be added.
(3) No person shall
be added as a plaintiff suing without a next friend or as the next friend of a
plaintiff under any disability without his or her consent in writing to being
added.
(4) Where a
defendant is added or substituted, the plaint shall, unless the court otherwise
directs, be amended in such manner as may be necessary, and amended copies of
the summons and of the plaint shall be served on the new defendant, and, if the
court thinks fit, on the original defendants.
(5) For the purpose
of limitation, the proceedings against any person added or substituted as
defendant shall be deemed to have begun only on the service of the summons on
him or her.”
In Pathak v Mrekwe (1964) EA 24, an action was filed in the name of
the respondent 45 days after her death. Subsequently, an application to amend
the plaint by substituting the name of another person as plaintiff was made
under Order 1 rule 10 of the Indian Civil Procedure Code, 1908 and the
magistrate who was not informed that the plaintiff was dead when the action was
filed, made the order sought. The defence pleaded, inter alia, that the suit
was a nullity, having been filed in the name of a deceased person. The
magistrate however gave judgment for the plaintiff for the sum claimed. On
appeal, it was held that a suit instituted in the name of a dead person is a
nullity. The power conferred by Order 10 rule 1 to substitute a plaintiff where
a suit has been filed in the name of a wrong plaintiff can only be exercised
where the “wrong person” is living at the date of filing the suit and has no
application where the “wrong person” is dead at such date.
In Matharu v Italian Construction Company & Another (1964) EA 1,
the plaintiff was concerned in a traffic accident which also involved a vehicle
then belonging to a firm known as Italian Construction Company Limited of which
the partners of the firm were the directors and shareholders. When the
plaintiff’s advocate prepared and filed a plaint for his client, he showed the
defendant company instead of the firm as a defendant, although the company was
not in existence at the time of the accident. Subsequently, an application was
made for leave to amend the plaint by substituting the firm for the defendant
company in support of which it was submitted that that on the wording of the
plaint, it was clear that it was the firm which it was really intended to sue.
It was held that upon a fair
treading of the plaint, it was the plaintiff’s intention to sue the persons who
were the partners in the firm at the material date. Further, that since the
partners, as directors of the limited company, had notice of the suit within
the period of limitation, it was just and proper to grant the application.
Court followed the case of Saraspur Manufacturing A Co. Ltd v BB&C
Railway Co. Where Macleod, CJ, said:
“It seems to me in the interests
of justice that if it can be said that there has been a misdescription of a
party in the title of a plaint, the necessary amendment ought to be allowed, if
otherwise the rights of the parties would be prejudiced”.
The Court also referred to Radha
Lal v E I Railway Co. Ltd , a case where the agent of the railway company
had been sued instead of the company and Mullick, Ag. CJ, said:
“If the plaintiff deliberately
chooses to sue not the company but the agent he cannot by any decree which he
obtains in the suit bind the company. If, however, upon a fair reading of the
plaint it is made out that the description of the defendant is a mere error and
that the company is the real defendant , then the suit may proceed against the
company.”
The judge however noted that not
all these cases were on all fours with the present case.
Misjoinder
and Non joinder
Under Order 1 rule 9, it is
provided that:
“No suit shall be defeated by reason of the misjoinder or nonjoinder of
parties, and the court may in every suit deal with the matter in controversy so
far as regards the rights and interests of the parties actually before it.”
Misjoinder is regarded as a minor
technicality which cannot defeat a suit. See: Allied Bank International Ltd
v Sadru Kala [2001-2005] HCB 79
See: GENERALLY Spry 2008, pages 13 to 16
Joinder
of Interveners
An intervener is one who on his
own application and with leave of court is added to an action pending between
others. When added, the intervener may
have the status of a party to the action as a friend of the court.
An intervener is normally
referred to as amicus curie or friend
of court and is a person who calls the attention of court to some decision or
point of law, but who does not become a party to the action.
Amicus Curiae is sometimes
referred to as a bystander and where a judge is doubtful or mistaken in a
matter of law, may assist the court. In
the case of Re Nakivubo Chemists (U) Ltd.
(1977) H.C.B 311, court noted that, in the ordinary use
the term amicus curiae implies a friendly intervention of counsel to remind the
court of some matter of law which has escaped its notice in regard of which it
is in danger of going wrong.
The common law principle is that
the parties to an action have the rights to litigate free of interference by a
stranger. Most recent cases have held
that as an intervener or amicus curiae should be restricted to those cases in
which the court is clearly in need of assistance.
At common law, a court has
inherent power to invite an amicus curiae when it considers it desirable. However, the person so called, ought not to
be interested in the matter at hand, except the Attorney General.
See: IGG & Jinja District Administration v Blessed
Constructors Ltd (HCCA 21/2009-at
Kampala)
Striking
Out, Substitution and addition Parties
See Order 1 rule 10 of the CPR
which states that:
“(1) Where a suit has been instituted in the name of the wrong person as
plaintiff, or where it is doubtful whether it has been instituted in the name
of the right plaintiff, the court may at any stage of the suit, if satisfied
that the suit has been instituted through a bona fide mistake, and
that it
is necessary for the determination of the real matter in dispute to do so,
order any other person to be substituted or added as plaintiff upon such terms
as the court thinks fit.
(2) 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 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 order to enable the court effectually and completely
to adjudicate upon and settle all questions involved in the suit, be added.
(3) No
person shall be added as a plaintiff suing without a next friend or as the next
friend of a plaintiff under any disability without his or her consent in
writing to being added.
(4)
Where a defendant is added or substituted, the plaint shall, unless the court
otherwise directs, be amended in such manner as may be necessary, and amended
copies of the summons and of the plaint shall be served on the new defendant,
and, if the court thinks fit, on the original defendants.
(5) For
the purpose of limitation, the proceedings against any person added or
substituted as defendant shall be deemed to have begun only on the service of
the summons on him or her.”
Third
party proceedings
Under order 1 rule 14 CPR, third party proceedings is an action
by the defendant for contribution or indemnity against the 3rd
person or a co-defendant as a third party (see rule 21).
Objects of 3rd party procedure
1.
To prevent multiplicity of actions and to enable
court to settle disputes between all parties in one proceeding and save
expenses.
2.
To prevent the same issue from being heard twice
with a possibility of different results.
3.
To have the issue between defendant and 3rd
party resolved in the original action between the plaintiff and defendant.
4.
To have the issue between defendant and 3rd
party decided as soon as possible after the decision in the original action
between the plaintiff and defendant.
In lieu of commencing 3rd
party proceedings, the defendant may sue a 3rd person, in a separate
action to enforce his rights.
Nature
of third party proceedings
This order applies only to cases
where the defendant claims to be entitled to contribution or indemnity against
a third party.
A third party proceeding is in
effect an independent action with a 3rd party becoming a defendant,
with a right to counter claim or having the right to conduct a discovery of
opposing parties. Where the main action
is settled, a 3rd party proceeding may still continue. A 3rd party may be dismissed for
want of prosecution, even though the main action is still proceeding.
Under the rules of court, a 3rd
party is not strictly a defendant against the plaintiff in the original suit,
but the rules generally provide that a 3rd party may dispute the
liability of the defendant on the original action to the plaintiff.
A 3rd party may also
under the rules take third party proceedings against any other person including
the plaintiff in the original action (See rule 20).
When the 3rd party
claims contribution or indemnity, such third party may counter claim against
the defendant in the original action, at whose instance he was made a 3rd
party, but not against the plaintiff in the original action. As a 3rd party is not a party to
that action.
Scope of
third party proceedings
A claim for contribution or
indemnity may arise out of an express or implied contract or from the
relationship of parties or where a right of indemnity exists, when the relationship
between the parties is such that either in law or equity, there is an
obligation upon one party to indemnify the other.
The right to indemnity need not
be for the claim in a main action. It may be for any separate or severable part
in the plaintiff’s claim. The defendant
may also claim against a 3rd party for any relief or remedy relating
to or connected with the subject matter of the original action and is
substantially the same as the relief or remedy claimed by the plaintiff in the
original action. But it is not necessary
that the whole question between plaintiff and the defendant or the 3rd
party be identical.
Facts in the original suit and
the 3rd party proceedings must be related. The real question to determine is whether on
considering the facts upon with the plaintiff relies against the defendant in
the main action, issues arise of the relations between the defendant and the 3rd
party. There must be a connection of
fact or subject matter between the claim upon which the plaintiff sues in the
main action and the claim of the defendant against the 3rd party.
INTERPLEADER
Where a stakeholder with no
personal interest in property he or she is holding receives competing claims to
such property from two or more persons, he or she may seek relief by way of
interpleader. This is done by the
claimants’ arguing out their claims against each other before the court, where
the inter-pleader proceeding may be instituted.
Under section 59 of Civil
Procedure Act it is provided that:
“Where two or more
persons claim adversely to one another the same debt, sum of money or other
property, movable or immovable, from another person, who claims no interest in
it other than for charges or costs and who is ready to pay or deliver it to the
rightful claimant, that other person may institute a suit of interpleader
against all the claimants or, where a suit notice in such suit, for the purpose
of obtaining a decision as to the person to whom payment or delivery shall be
made, and of obtaining indemnity for himself or herself; except that where any
suit is pending in which the rights of all parties can be properly decided, no
such suit of interpleader shall be instituted.”
Under Order
31 rule 2 it is provided that:
“Interpleader proceedings may be instituted—
(a) in a case where
no suit is pending, by an originating summons;
or
(b) in a case where a suit is pending, by motion on notice in that
action.”
See: Nakabugo v F.D Serunjogi (1981)
HCB 59;
Nature
of Interpleader Relief
Under
Order 34 Rule 2 CPR, it is provided that:
“In every suit of or application by way of interpleader the applicant
shall satisfy the court by way of affidavit or otherwise—
(a) that
the applicant claims no interest in the subject matter in dispute other than
for charges or costs;
(b) that
there is no collusion between the applicant and any of the claimants;
(c) that
the applicant is willing to pay or transfer the subject matter into court or to
dispose of it as the court may direct.”
According to the case of Famous
Ajoling Agency Ltd. V M. Ramj (1994) 5 K.L.R. 58,Court notedthat the
basis of the right to interpleader relief is in the existence of a conflict
between two or more persons claiming the same property or debt.
Accordingly, the claims against the applicant
must be adverse to each other. See: Sergent v Gautama (1968) EA 338 (CA-K).
The object of an inter pleader
proceeding is to save an applicant from the embarrassment of being sued by more
than one party in respect of the same subject matter and also to ensure that
the claimant can enforce the claims with an order of court.
PLEADINGS
It is in all cases desirable and necessary that the matter to be
submitted in court for decision should in all cases be ascertained. The defendant is entitled to know all that
the plaintiff alleges against him or her.
The plaintiff is also entitled to know what the defendant’s defence is.
See: Goustar Enterprises Ltd v John Kokas Ouma, SCCA No. 8 of 2003
The defendant may dispute every statement made by the plaintiff or may
be prepared to prove other facts that will give the case a different turn. He
or she may rely on a point of law or on the claim. In all cases, before the
trial, parties should know exactly what they are fighting about. Otherwise,
they unnecessarily labour and incur unnecessary expenses to procure evidence to
prove at the trial facts which the opposite party concedes.
Section 2 of the
Civil Procedure Act defines pleadings to include “any petition or summons, and also includes the
statements in writing of the claim or demand of any plaintiff, and of the
defence of any defendant to them, and the reply of the plaintiff to any defence
or counterclaim of a defendant”.
In Odger’s Principles of
Pleadings and Practice, 20th Edition, page 11, pleadings are defined
as statements in writing, served by each party alternately on his opponent,
stating what his contention will be at the trial, and giving all such details
as his opponent needs to know in order to prepare his case in answer”.
The usual pleadings in an
action are:
·
Statement of claim, in
which the plaintiff sets out his or her cause of action with all necessary
particulars as to his or her injuries and losses.
·
A defence, in which the
defendant deals with every material fact alleged by the plaintiff in his
statement of claim and also states new facts on which he or she intends to
rely. A defendant may also set up a cross claim known as a counter claim.
·
A reply in which the
plaintiff deals with fresh facts raised by the defendant in his or her defence.
A reply is unusual except where a defendant sets up a counter claim.
The plaintiff naturally
begins with a plaint presented to court. On the plaint, the plaintiff lays his
or her claim.
The defendant may put in
his or her defence which besides answering the plaintiff’s claim may set up a
counter claim or a set off.The plaintiff may make a reply and the defendant may
rejoin.
Each of the alternate
pleadings must in its own terms either admit or deny the facts alleged in the
last preceding pleadings. It may also
allege additional facts where necessary.
The points admitted by
either side are extracted and distinguished from those in controversy. Other
facts not disputed may prove to be immaterial. Thus, litigation is limited to
the real matters in dispute.
Pleadings should be
conducted so as to evolve clearly defined issues, definite propositions of law
and fact asserted by one party and denied by the other but which both agree to
be the points on which they wish to have the court decide in the suit.
There are advantages
achieved after the exchange of pleadings namely:
·
The parties themselves get
to know what exactly is in dispute and actually may find that they are fighting
over nothing.
·
The parties get to know
what exactly will be brought at the trial and this may save expenses in
procuring evidence.
·
The mode of the trial may
be determined from the pleadings which may raise a simple point of law.
·
Pleadings help in final
determination of the issues. The successors to the parties do not have to fight
over the same issue (see s.7 CPA).
The function of pleadings
is to ascertain with precision the matters on which the parties differ and
those on which they agree and thus, to arrive at clearly defined issues which
both parties desire a judicial decision. To arrive at this, pleadings must be
exchanged between the parties in accordance with the law and practice.
See: Interfereight
Forwarders Ltd v EADB [1994-1995] HCB 54 (SCU)
The law compels each party
to state clearly and intelligibly the material facts on which he or she relies
omitting everything immaterial and to insist on his or her opponent admitting
or expressly denying every material matter alleged against him or her. Each party must give his or her opponent a
sufficient outline of the case.
After the first pleading,
namely the plaint, each party must do more than state his or her case. He or
she must deal with what is presented by the opponent. A party who wants to
contest the opponent’s case must deal with the other party’s case in three
ways:
a) He or she can deny the whole or some essential
part of averments of facts contained in the pleadings. This is what is called
traversing an opponent’s allegations and the party will in essence be
compelling the other to prove his or her allegation.
b) He or she may confess and avoid (confession and
avoidance). In his or her defence, he or she may allege facts which go to
destroy the effect of the facts alleged in the plaint. He or she may plead
other facts but argue that it is the plaintiff in default.
c) A demurrer – This basically means pleading a
point of law. The defendant may plead res judicata, limitation, e.t.c.
particularly, the allegation may be traverses as or objected to as bad in law, or
some collateral matter may be raised to destroy the effect of the plaintiff’s
pleading.
The cardinal rule of
pleadings is contained in order 6 rule 1(1) which states that
“Every pleading shall
contain a brief statement of the material facts on which the party pleading
relies for a claim or defence, as the case may be.”
See: Jan Mohamad
Sulaiman v Haji Sulaiman Mugwaji [1999] KALR 944
For the effect of annexing
documents to a pleading, see: NPART v Kapeeka Coffee Works Ltd [2003] 2 EA
633 (SCU)
Under Order 6 rule 1(2) it
is provided that:
“the pleadings shall, when
necessary, be divided into paragraphs, numbered consecutively; and dates, sums
and numbers shall be expressed in figures.”
From this rule, it follows
that:
(a) Pleadings should
contain facts not law and a party has to prove those facts that will help him
or her to hold his or her case and he or she must do so precisely.
In Shaw v Shaw
[1954] 2 QB 429, 441, Lord Denning said that:
“It is said that an implied warranty is not alleged in
the pleadings, but all the material facts are alleged, and in these days, so
long as those facts are alleged, that is sufficient for the court to proceed to
judgment without putting any particular legal label upon the cause of action”.
See also: Singlehurst v Tapscott Steamship Co. (1899)
WN 133
Whenever a party is pleading, he must only send the
material facts. It is not sufficient to plead generally.
(b) A party must plead only
the material facts. In Bruce v Oldham’s
Press Ltd [1936] 1 KB 712, Scott, LJ, said that:
“The word ‘material’ means
necessary for the purpose of formulating a complete cause of action, and if any
one ‘material’ fact is omitted, the statement of claim is bad”.
In Darbyshire v Leigh [1896] 1 QB 554, 65 LJ QB 360, it was stated
that:
“But in an action for libel
or slander, the precise words complained of are material, and they must be set
out verbatim in the statement of claim. If the words taken by themselves are
not clearly actionable, the plaintiff must also insert in his statement of claim
an averment (with particulars in support) of an actionable meaning which he
will contend the words conveyed to those to whom they were established. Such an
averment is called an innuendo”.
Whether or not a fact is
material will depend on the circumstances of a case and where there is doubt, a
fact should be included in the pleadings as the more facts included the better.
Where notice is an element
of a cause of action, one must plead that notice. For instance under the Bills
of Exchange Act, it is a requirement to give notice of dishonor to the person
who issued the bill of exchange.
The party must state his or
her case. The plaintiff is not entitled to any relief not pleaded in the
pleadings and not proved at the trial.
Under Order 6 rule 2, every
pleading must be accompanied by a summary of evidence, list of witnesses, list
of documents and list of authorities. This is hinged on the fundamental premise
that there should be no element of surprise at the trial. Additional lists can
be presented to the court with leave.
Particulars in Pleadings
The necessity for
particulars springs from the need to have precise and concise pleadings. They
serve to supplement otherwise vague and generalized pleadings and are necessary
for a fair trial.
Particulars also help to
prevent surprise at the trial by informing the other party of the nature of the
case he or she is likely to meet and defend thus securing ground for an
amicable settlement of issues as opposed to warfare.
Order 6 rule 3 of the CPR
provides that:
“In all cases in which the
party pleading relies on any misrepresentation, fraud, breach of trust, wilful
default or undue influence, and in all other cases in which particulars may be
necessary, the particulars with dates shall be stated in the pleadings.”
In Bisuti v Busoga District Administration, the court held that the
function of particulars was to carry into operation the overriding principle
that litigation between the parties and particularly the trial should be
conducted fairly, openly and without surprise.
They serve to inform the other side of the nature of the case they have
to meet as distinguished from the mode in which the case is to be proved, to
enable the other side to know the what evidence they ought to be prepared with
and to prepare for trial and to prevent the other side from being taken by
surprise.
In Lubega v Barclays Bank, the Supreme Court held that particulars of
fraud must be pleaded as a legal requirement but that failure to do so is a
mere irregularity curable by adducing evidence.
In Kampala Bottlers v Damanico, court found that particulars are
mandatory and failure to state them was fatal.
In David Acar v Acar Aliro (1987) HCB 60, the court found that a party
who has not pleaded an issue or led evidence on it in a lower court cannot
raise it on appeal.
Further and Better Particulars
Pleadings may be filed and
exchanged between the parties, a plaint may be served on the defendant who may
serve a written statement of defence in turn but the other party may feel that
the opposite party’s pleadings lack the particulars required. In situations
where a party finds that the adversary’s pleadings are not clear, procedural
law provides for methods of seeking clarity.
This can be through seeking
further and better particulars, discovery of documents or the administration of
interrogatories. The opposite party’s
pleadings may be attacked in order to enable the party to acquire the necessary
particulars required in the case.
Since a party cannot amend
the other party’s pleadings, he or she can ask for an alteration or
clarification in the other party’s pleadings.
Order 6 rule 4 states that:
“A further and better
statement of the nature of the claim or defence, or further and better
particulars of any matter stated in any pleading, may in all cases be ordered
upon such terms as to costs and otherwise as may be just.”
Initially, the unsatisfied
party writes to the other requesting him to furnish him with material facts. If
after correspondence the particulars are not forthcoming, the party requiring
particulars may apply to court for an order requesting the opposite party to
furnish further and better particulars and the court may make such order.
The object of further and
better particulars is to enable the other party to know what to expect at the
trial . The opponent should not be surprised.
See: Joshi v Uganda Sugar Factory Ltd [1965] EA 570
Weiberger v Inglis (1916-17) All ER 844
Departure from Pleadings
Under order 6 rule 7, it is
provided that:
“No pleading shall, not
being a petition or application, except by way of amendment, raise any new
ground of claim or contain any allegation of fact inconsistent with the
previous pleadings of the party pleading that pleading.”
This is intended to prevent surprise at the
trial.
See:
Darcy v Jones (1959) EA 121; Dirisa v Sietco
[1993] IV KALR 67 (SC)
Amendment of Pleadings
A party may find that his
or her pleadings are not clear and may in such a case move court by way of
amendment. Sometimes, a need for
amendment may arise from the other party adducing a new issue.
The law provides for
amendment with leave and amendment without leave of court.
Amendment with Leave
Order 6 rule 19 CPR provides that:
“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 all such
amendments shall be made as may be necessary for the purpose of determining the
real questions in controversy between the parties.”
Amendment without leave
The law allows both the
plaintiff and the defendant to amend his or her pleadings without leave of
court.
Order 6 rule 20 provides that:
“A plaintiff may, without
leave, amend his or her plaint once at any time within twenty-one days from the
date of issue of the summons to the defendant or, where a written statement of
defence is filed, then within fourteen days from the filing of the written
statement of defence or the last of such written statements”.
Order
6 rule 21
provides that:
“A defendant who has set up any counterclaim or
setoff may without leave amend the counterclaim or setoff at any time within
twenty-eight days of the filing of the counterclaim or setoff, or, where the
plaintiff files a written statement in reply to the counterclaim or setoff,
then within fourteen days from the filing of the written statement in reply.”
Apart from the cases
specified as instances in which the parties can amend without leave, in all
other cases, the parties must seek the permission of the court. After the lapse
of the time within which pleadings can be amended, a party’s pleadings will be
deemed to be closed and documents filed thereafter will be of no legal effect
or consequence.
CAUSE OF
ACTION
A cause of action can be defined
as the fact or combination of facts which give rise to a right of action.
According to Halsbury's Laws of England/Civil
Procedure (Volume 11 (2009) 5th Edition, Paras. 21, it is stated that:
“'Cause of
action' has been defined as meaning simply the facts the existence of which
entitles one person to obtain from the court a remedy against another person.
The phrase has been held from the earliest time to include every fact which is
necessary to be proved to entitle the claimant to succeed, and every fact which
the defendant would have a right to dispute. 'Cause of action' has also been
taken to mean that particular act on the part of the defendant which gives the
claimant his cause of complaint3, or the subject matter or grievance founding
the claim, not merely the technical cause of action4.
The same facts
or the same transaction or event may give rise to more than one effective cause
of action.
A cause of
action arises wholly or in part within a certain local area where all or some
of the material facts which the claimant has to prove in order to succeed arise
within that area.
A reasonable
cause of action means a cause of action with some chance of success, when only
the allegations in the statement of case are considered.”
The cause of action is the heart of the plaint, which is the
Pleading that initiates a lawsuit. Without an
adequately stated cause of action the plaintiff's case can be dismissed at the
outset. It is not sufficient merely to state that certain events occurred that
entitle the plaintiff to relief. All the elements of each cause of action must
be detailed in the plaint. The claims must be supported by the facts, the law,
and a conclusion that flows from the application of the law to those facts.
The
cause of action is often stated in the form of a syllogism, a form of deductive
reasoning that begins with a major premise (the applicable Rule of Law), proceeds to a minor premise (the
facts that gave rise to the claim), and ends with a conclusion. In a cause of
action for Battery, the rule of law is that any
intentional, unpermitted act that causes a harmful or offensive touching of
another is a battery. This is the major premise and is stated first. Supporting
facts, constituting the minor premise, appear after the rule of law. For
example, a statement of facts for a case of battery might be "The
plaintiff, while walking through ABC Store on the afternoon of March 11, 2009,
was tackled by the defendant, a security guard for the store, who knocked the
plaintiff to the floor and held her there by kneeling on her back and holding
her arms behind her, while screaming in her ear to open her shopping bag. These
actions caused the plaintiff to suffer injuries to her head, chest, shoulders,
neck, and back." The cause of action concludes with a statement that the
defendant is responsible for the plaintiff's injuries and that the plaintiff is
entitled to compensation from the defendant.
A
cause of action can arise from an act, a failure to perform a legal obligation,
a breach of duty, or a violation or invasion of a right. The importance of the
act, failure, breach, or violation lies in its legal effect or characterization
and in how the facts and circumstances, considered as a whole, relate to
applicable law. A set of facts may have no legal effect in one situation,
whereas the same or similar facts may have significant legal implications in
another situation. For example, tackling a shoplifting suspect who is
brandishing a gun is a legitimate action by a security guard and probably would
not support a claim for relief if the suspect were injured in the fracas. On
the other hand, tackling a shopper who merely acts in a suspicious manner while
carrying a shopping bag is a questionable exercise of a guard's duty and may
well give rise to Justiciable causes of action.
A cause of
action has been defined in various cases from being “every fact which is
material to be proved to entitle the plaintiff to succeed” in Cooke v
Gill (1873) LR 8 CP 107 to “every fact which it would be necessary
to support his right to the judgment of the court” in the case of Read v
Brown ( 1888) 22 QBD 128.
According to the leading case of
Auto Garage Vs Motokov (1971) E.A. 314,
there are 3 essentials to support or sustain a cause of action:
1.
That the plaintiff enjoyed the right.
2.
That the right has been violated.
3.
That the defendant is liable
If any of these essentials in
missing, the plaint or statement of claim is a nullity.
A Cause of action also means
every fact which defendant will have a right to traverse.
In the case of Uganda
Aluminium Ltd V Restuta Twinomugisha C.A. No. 22/2000and also inTororo
cement Co. Ltd V. Frokina International Ltd, C.A. No. 21/2001 unreported, it
was noted by the Court of Appeal that a cause of action means every fact which
is material to be proved to enable the plaintiff succeed or every fact which if
denied the plaintiff must prove in order to obtain judgment.
Before one can even sue, one needs to bear in mind
the procedures involved. And none is a procedure more important than having a
valid cause of action.
In order to determine whether or
not a plaint discloses a cause of action, the court must look only at the
plaint and its annextures if any and nowhere else.
The above issue was reiterated
in the case of Kapeka Coffee Works Ltd & Anor Vs NPART Court of Appeal Civil
Appeal No. 3/2000.
In Otucu & Another v Otwi &
Others, High Court Civil Appeal 027 of 2007 (at Gulu), Justice Remmy
Kasule observed the following:
“The essence of grounds one (1) and three (3) of
appeal is whether or not the learned trial magistrate was justified to hold
that the plaint filed in court by the plaintiffs disclosed a cause of action
against the Defendants, and whether the plaintiff’s claim was time barred under
the Limitation Act. These grounds will
be considered by court together.
The law as to the existence of a cause of action in
a plaint is that: If a plaint shows in its averments that the plaintiff enjoyed
a right and that that right has been violated and that the defendant is liable
for that that violation, then the plaint discloses a cause of action.
In determining whether a plaint discloses a cause
of action, court must only consider and look at the averments contained in the
plaint. Court is not to consider
extraneous matters outside the plaint.
See: AUTO GARAGE VS MOTOKOV (NO. 3) 1971 EA 514 at
page 519, JOSEPH MPAMYA VS AG (1996) 11 KALR 121 at p. 124 And HIGH COURT OF
UGANDA HOLDEN AT GULU CIVIL APPEAL NO. 8 OF 2007, MARY OCENG & 2 OTHERS VS
SANTO ADOKO, UNREPORTED.
Since now in Uganda the law i.e. Order 6 Rule 2, of
the Civil Procedure Rules, is that every pleading must be accompanied by a
summary of evidence, in the humble view of this Court, it would not be wrong of
court, to consider what is stated in the summary of evidence when considering
whether a plaint discloses or does not disclose a cause of action. Since this is a new development in the law of
Civil Procedure in Uganda, in this particular case under consideration this
court shall, in deciding the issue, confine itself to what is stated in the
plaint only.
It was incumbent of the learned trial magistrate to
look at and consider only the plaint in determining whether or not the plaint
disclosed a cause of action.
With respect to the learned trial Magistrate, she
based her decision in reaching the decision she made by considering and taking
into account matters that had to be proved by evidence at the actual hearing of
the case, which stage had not yet been reached by the time the preliminary
objection was raised. Thus on page 2
para 8 of her Ruling the learned magistrate holds:
“It is thus improper and unbecoming of a person who comes empty handed
to dislodge all these persons and even if this was not the case I think the
plaintiff s sat on their rights for too long”.
The learned trial magistrate had had no evidence at
all from the parties to reach the above conclusion. The learned Magistrate then
proceeded to consider the issue of consent from the plaintiffs before the
defendants can transact business on the suit land and then concluded:-
“I am convinced that the land in issue is customary land belonging to the plaintiff and
1st and 2nd defendants since they all come from a common decency.”
And then she concluded
“The claim that the defendants needed to have consulted the plaintiff
before selling off or hiring out the said land to the rest of the defendants
do not then stand”,
and
“It should be noted that the use or ownership of customary land is
governed by the practice, customs or traditions of the particular clan or by
local customary regulations. The
plaintiff in this case did not show or make mention of such a breach by 1st
and 2nd defendants”.
Basing on the above conclusions the learned trial
magistrate concluded that the plaintiffs did not show a cause of action
because:-
“ First all their own land or share is not disturbed. Each and every party is on his or
her land. There is therefore no violation of any right
of the plaintiffs. Even if this was so
time has barred them from instituting the suit. Their consent is also not
necessary here”
and
“ Besides, any person cultivating any land adjoining a residential
holding owned by an intestate prior to his/her death have a right to do so for
as long as the person is resident there.
I believe this is applicable to defendants.”
The learned magistrate finally held that:
“ I am convinced the plaintiff did not satisfy the requirement of Order
0.7 r. 11 (a) and has no locus standi”
She then dismissed the suit as there was no cause
of action. The order to dismiss the suit was itself wrong. The court should have rejected the plaint
under Order 7 Rule 11 (a) of the Civil Procedure Rules. More fundamental
however is the fact that, as born out by the above extracts from the Ruling of
the learned trial magistrate, she reached her decision by considering matters
that needed to be proved and had not been proved before her by any evidence
from any of the parties. They were
matters she had to resolve upon if a full trial of the case had taken place.
The learned trial magistrate ought to have
restricted herself to looking at the plaint only. Admittedly, the plaint was
badly and carelessly drawn. It is a
matter of regret to the legal profession that the same is a product of a firm
of lawyers. The legal profession, more
than any other profession, enjoins its members to exhibit the best proficiency
of expertise when handling and pursuing instructions of clients. This is because, more often than not, what is
being handled for the clients involves determination of their fundamental
rights and obligations.
In this particular case, the firm of lawyers who
drew up the plaint and filed the same for the plaintiffs, cannot be said to
have measured up to that high level of professional efficiency and expertise.”
When a cause of action is
founded in a determinant tort e.g. negligence, there are cornerstones on which
the will be based. Actionable negligence
consists in the neglect of the use of ordinary care and skill towards a person
to whom the defendant owes a duty of observing ordinary care and skill.
Under Order 7 rule 11 (a) of the CPR provides that,
“A
Plaint shall be rejected where it does not disclose a cause of action.”
A plaint without a cause of
action is nothing as there is no basis for locus for such party to be before
court in the first place.
JOINDER
OF CAUSES OF ACTION
The
facts or circumstances that entitle a person to seek judicial relief may create
more than one cause of action. For example, in the preceding example, the
plaintiff might assert claims for assault, battery, intentional infliction of
emotional distress, and violation of Civil Rights. She might also bring claims for
negligent hiring (if the guard had a history of violent behaviour which the
store failed to discover) or negligent supervision. (When damages are caused by
an employee it is common to sue both the employee and the employer.) All these
causes of action arise from the same set of facts and circumstances but are
supported by different rules of law and constitute separate claims for relief.
Under
Order 2 Rule 4 CPR, it is provided that:
“(1) Except as otherwise provided, a plaintiff may unite in the same
suit several causes of action against the same defendant or the same defendants
jointly; and any plaintiffs having causes of action in which they are jointly
interested against the same defendant or the same defendants jointly may unite
those causes of action in the same suit.
(2) Where causes of action are united, the jurisdiction of the court as
regards the suit shall depend on the amount or value of the aggregate subject
matters at the date of instituting the suit.”
The joinder of causes of action
not only has an effect of reducing the number of actions but also on who should
be parties to an action.
Under Order 2 rule 7, it is provided that:
“Where it appears to the court that any causes of
action joined in one suit cannot be conveniently tried or disposed of together,
the court may order separate trials or may make such order as may be expedient.”
A plaintiff may under order 2
rule 4 CPR join in an action, more than one cause of action and when the
joinder of any cause of action is contested by the defendant, the plaintiff
must justify the joinder or else the objection of misjoinder will be upheld by
court. Order 2 rule 8 (1) provides that:
“Any defendant alleging that the plaintiff has
united in the same suit several causes of action which cannot be conveniently
disposed of together may at any time apply to the court for an order confining
the suit to such of the causes of action as may be conveniently disposed of
together.”
For example, in the case of Christopher
Kayabeke V Annes Agaba, the plaintiff had two causes of action properly brought before the court. One of them was the partial action by which
he sought court’s protection of his pecuniary interest in the company and a
derivative action by which he sought court’s protection for the good of the
company generally against waste by the directors. The court rightly entertained
the matters and granted appropriate damages in respect of the two cause of
action.
Joinder of causes of action is
directly related with consolidation of suits under Order 10 of the Civil
Procedure Rules.
In the case of Metropole
Plannacy U. Ltd V. Katumba (1975) H.C.B. 61, the High Court held that
where there is a misjoinder of causes of
action, the plaint could be struck out under or a separate trial maybe ordered
under O.2 R5 (now 7).
A joinder of causes of action
can result in ouster of courts pecuniary jurisdiction. Where such cause of
action are united, the jurisdiction of the court shall depend on the amount or
value of the aggregate subject matter as at the date of instituting the suit (See
Order 2 rule 4(2) CPR).
In the case of Kiramukutesa
Consumer’s V. Ssebugwawo (1986) H.C.B. 61, it was held that where after consolidation
the value exceeds the jurisdiction of the court, such court should not proceed
with a trial after consolidation.
PRINCIPLES
APPLICABLE TO JOINDER OF CAUSES OF ACTION
The courts have laid down the
following principles with respect to joinder of causes of action.
1)
Trend to encourage joinder: The trend of modern jurisprudence is to
extend the application of rules of court, to have all the issues between the
parties dealt with in one action and to diminish the cost of litigation.
2)
Different Capacities of parties: Different causes
of action may arise out of the fact that a party may sue or be sued in
different capacities. If one person sues
in a personal capacity and as an executor, he is in fact suing as a separate
and distinct person in a cause of action.
3)
Plaintiffs with different causes of action:
Different plaintiffs may have different causes of action against the same
defendant. This is generally permitted
under the rules where the cause of action arises in respect of the same
transaction or series of transactions where the court authorizes the joinder. However such joinder is discretionary.
4)
Plaintiff determines Joinder: A plaintiff has the option of determining
which cause of action against the defendant he will join, but when a cause of
action against the defendant arose subsequent to the issue of summons, joinder
of a claim is improper. Joinder of a
defendant against whom the plaintiff makes no claim is not permitted unless a
very clear and strong case was made that the joinder was necessary for the
determination of the issues in the action.
5)
Trial of several causes of Action in an
action. Where there are several causes
of action the court may order separate trials in respect of certain claims or
order that the trial judge should determine which issues are to be tried by the
judge. The discretion of the judge will
prevail unless she or he acted on a mistake of law.
6)
Refusal of Joinder of Cause of Action: Joinder of cause of Action should not be
permitted if the actions cannot be disposed off conveniently in one action or
their joinder will be considered too oppressive.
BUSINGYE KEITH LAW GUIDE.
