[2025] UGCommC 89

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISCELLANEOUS APPLICATION NO. 2683 OF 2024 (ARISING FROM CIVIL SUIT NO. 1390 OF 2024)**

10 **TBH HOLDINGS LIMITED :::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

#### **1. MPALANYI FAIZO NIWAMANYA**

# 15 **2. MULTICHOICE UGANDA LIMITED :::::::::::::::::::::::::: RESPONDENTS**

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

#### **RULING**

#### Introduction

This application was brought by way of Notice of Motion under **Section 33**

- 20 **of the Judicature Act (now Section 37 of Cap. 16), Section 98 of the Civil Procedure Act, Cap. 282, Order 1 rules 3 and 10(2)** and **Order 52 rules 1 and 2 of the Civil Procedure Rules SI, 71-1** seeking orders that: - 1. The Applicant be joined as a Defendant in *Civil Suit No. 1390 of 2024*. - 25 2. The 1st Respondent amends his plaint and adds the Applicant as a Defendant. - 3. The Applicant be granted leave to file its written statement of defence in *Civil Suit No. 1390 of 2024*. - 4. Costs of and incidental to this application abide the result of *Civil* 30 *Suit No. 1390 of 2024*.

#### 5 Background

The background of this application is contained in the affidavit in support deponed by **Mr. Albert Mucunguzi**, the Applicant's Chief Operating Officer, and is summarized below:

- 1. That the Applicant provides creative and digital marketing services - 10 to the 2nd Respondent/Defendant under a contract that was executed on 1st September, 2024. - 2. That the posting of the video, the subject of *Civil Suit No. 1390 of 2024*, was done by the Applicant's employee during the provision of the services under the contract. - 15 3. That under the said contract, the Applicant further agreed to indemnify the 2nd Respondent against any claims, demands or losses arising from the provision of the services. - 4. That therefore, the Applicant has an interest in the main suit since it stands to be the party to pay any sums that could be ordered to be 20 paid by the 2nd Respondent. - 5. That since it is the Applicant's employee that posted the video, the Applicant is also a necessary party to the main suit for Court to effectually and completely adjudicate all the questions involved. - 6. That the Applicant also disputes the allegations that the posting of the video was an infringement of any rights of the 1st 25 Respondent/Plaintiff.

In reply, the 1st Respondent, **Mr. Mpalanyi Faizo Niwamanya** opposed the application contending that:

1. He is a media influencer, who during the course of his duty, made a 30 short video about the new season of "Damalie" a series being aired on GOTV, the subject of *Civil Suit No. 1390 of 2024*.

- 5 2. He has no cause of action against the Applicant since he is not a party to the contract between the 2nd Respondent and the Applicant. - 3. Since the Applicant is supposed to indemnify the 2nd Respondent as per their contract, then they ought to institute 3rd party proceedings and not by adding the Applicant as a Defendant. - 10 In rejoinder, the Applicant through an affidavit deponed by **Mr. Barnabas Ntakirutimaana** the Applicant's Finance Director, reiterated its previous averments and further contended that: - 1. The posting of the video, the subject of *Civil Suit No. 1390 of 2024*, was done by the Applicant's employee and not the 2nd Respondent. - 15 2. Whether the Applicant is admitted as a Defendant or added as a third party is not material. - 3. This Court has the discretion, on its own motion, to add the Applicant as a Defendant if such a joinder would in the Court's opinion, facilitate the effective and complete adjudication of the suit. - 20 Representation

The Applicant was represented by **M/s Musiime, Muhebwe & Co. Advocates** while the 1st Respondent was represented by **M/s JM Musisi Advocates & Legal Consultants**.

Both parties were directed to file their written submissions, which they 25 did, and the same have been considered by this Court.

## Issues for Determination

Following **Order 15 rule 5(1) of the Civil Procedure Rules**, and the case of *Oriental Insurance Brokers Limited Vs Transocean (U) Limited SCCA No.55 of 1995*, the Court has rephrased the issues so raised to

30 read as follows:

- 5 1. Whether it is necessary and proper to add the Applicant as a Defendant in *Civil Suit No. 1390 of 2024*? - 2. What remedies are available to the parties?

Issue No. 1: Whether it is necessary and proper to add the Applicant as a Defendant in *Civil Suit No. 1390 of 2024*?

10 Applicant's submissions

Counsel for the Applicant relied on **Order 1 rule 10(2) of the Civil Procedure Rules** and the cases of *Sagoo Harbhan Singh & Another Vs Nathan Mugisha & Others HCMA No. 2306 of 2021*¸ *Vastina Kyalisima Vs Josephine Abaasa HCMA No. 500 of 2021* and *Departed*

- 15 *Asians Property Custodian Board Vs Jaffer Brothers Ltd SCCA No. 9 of 1998* and submitted that the main purpose for joining parties is to enable the Court deal with the matter before it and to avoid multiplicity of proceedings. - That in its affidavit in support and rejoinder, the Applicant avers that it is 20 a necessary party to the main suit and this is because the alleged act of infringement was done by its employee and not the 2nd Respondent and thus the Applicant has interest in the suit as the party responsible for the alleged breach. Also, that the Applicant has an indemnity understanding with the 2nd Respondent as contained in clause 16 of the contract between 25 the Applicant and the 2nd Respondent. Further, that the orders sought in the 1st Respondent's suit directly and legally affect the Applicant by virtue of the contract between the Applicant and the 2nd Respondent since it is liable to compensate the 2nd Respondent should the Court find that there was an infringement. That this makes it necessary for the Applicant to 30 defend the suit.

- 5 Regarding the 1st Respondent's contention that he has no cause of action against the Applicant and that the procedure should be 3rd party proceedings and not this application; Counsel submitted that a cause of action is not a key determinant on whether a party is necessary to a suit. - In conclusion, Counsel submitted that as a party responsible for the 10 alleged infringement done by its employee, it is appropriate and in the interest of justice that the application is granted so that the 1st Respondent's claim is determined finally and completely to avoid multiplicity of actions at a later stage.

#### 1st Respondent's submissions

- 15 Counsel for the 1st Respondent submitted that it is a fundamental consideration that before a person can be added as a party to establish that they have a high interest in the case. That the person must demonstrate that the orders sought in the main suit will directly affect the party seeking to be added as was held in the case of *Departed Asians* - 20 *Property Custodian Board Vs Jaffer Brothers Ltd (supra)*. That in the case at hand, the Applicant seeks to be added as a Defendant but the 1st Respondent is not a party to the contract and thus cannot derive a cause of action from the same against the Applicant since he is not a party. That since the Applicant is basing on an agreement where it is supposed to 25 indemnify the 2nd Respondent, then they can institute 3rd party proceedings.

Further, that the addition of the Applicant as a Defendant will not entitle the 2nd Respondent to indemnification but rather it will become a cost burden to the 1st Respondent in case the main suit is dismissed with costs.

30 Counsel relied on the case of *Maj. Roland Kakooza Mutale Vs Attorney HCMA No. 665 of 2003* and submitted that it would be inappropriate and

5 unjust to the 1st Respondent to add the Applicant as a Defendant yet his claim is between him and the 2nd Respondent.

Counsel also submitted that the Applicant used a wrong law and procedure and that the right procedure would be for the 2nd Respondent to take out 3rd party proceedings against the Applicant. In conclusion, 10 Counsel submitted that since the 1st Respondent cannot be forced to sue the Applicant against his free will and the Applicant has no claim against the 2nd Respondent, it may be wiser for the 2nd Respondent to file an application for third party notice.

### Applicant's submissions in rejoinder

15 Counsel for the Applicant reiterated his previous averments and emphasized that the aim of the Applicant being added as a Defendant to the suit is not just to indemnify the 2nd Respondent but that since the actions giving rise to the 1st Respondent's cause of action against the 2nd Respondent were committed by the Applicant then the Applicant is in a

20 better position to defend the suit.

That also, the orders sought in the main suit directly and legally affect the Applicant. Counsel also reiterated that a party may be joined in a suit not because there is a cause of action against it but because their presence is necessary to enable Court effectually and completely adjudicate upon all

25 the questions involved in the matter.

Regarding the 1st Respondent's contention that he cannot be forced to sue someone against his will; Counsel relied on the case of *Mukuye Steven & 73 Others Vs Madhivani Group Ltd HCMA No. 821 of 2013* wherein it was held that the Court has the discretion to order for the addition of 5 parties on grounds that their presence is necessary in the resolution of all the questions involved in the suit.

## Analysis and Determination

## **Order 1 rule 10(2) of the Civil Procedure Rules** stipulates 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* 15 *necessary in order to enable the Court effectually and completely 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 add or remove a party to a suit on its motion. The 20 same has been portrayed in several decisions including, *Kololo Curing Co. Ltd Vs West Mengo Co-op Union Ltd [1981] HCB 60*. However, such discretion is to be exercised judiciously. As shown in the case of *Yahaya Kariisa Vs Attorney General & Another SCCA No.7 of 1994*, it is

25 curb multiplicity of suits.

In the case of *Departed Asians Property Custodian Board Vs Jaffer Brothers Ltd (supra)*, the Supreme Court considered **rule 10(2) of Order 1 of the Civil Procedure Rules** and held that:

intended to enable the Court to deal with matters to their finality so as to

*"This rule is similar to the English R. S. C Order 16 r11, under which* 30 *the case of Amon Vs Raphael Tuck & Sons Ltd [1956]1 ALL ER p.*

- 5 *273 was considered and decided and in which it was said that a party may be joined in a suit, not 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."* - 10 **Hon. Justice Mulenga, JSC (RIP)**, gave consideration for adding a party to a 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* 15 *be shown that the orders, which the Plaintiff seeks in the suit would 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."*

In the instant case, the Applicant seeks to be added as a Defendant in 20 *Civil Suit No. 1309 of 2024* on the grounds that the alleged infringement of the 1st Respondent's rights was occasioned by the Applicant's employee and not the 2nd Respondent and that no actual infringement was occasioned to the 1st Respondent by the Applicant's employee posting the video in issue. Further, that the Applicant will be affected by the orders of 25 Court in case the matter is decided in favour of the 1st Respondent, since it will have to pay for the infringement.

On the other hand, the 1st Respondent contended that the Applicant should not be added as a Defendant since he has no cause of action against it and that instead the Applicant and the 2nd Respondent should 30 institute 3rd party proceedings.

5 I have perused the pleadings in *Civil Suit No. 1309 of 2024* and according to the plaint, the 1st Respondent sued the 2nd Respondent for unauthorized use of his image/picture/video and captions for financial gain without consent. Therein, he seeks to recover compensation for the infringement, special damages and general damages among others. In its written statement of defence, under paragraphs 9 and 11, the 2nd 10 Respondent denied being liable contending among others that, the alleged act of posting the video was done by TBH Holdings Limited, the Applicant herein, an independent contractor who operates the 2nd Respondent's social media platforms. That therefore, the 2nd Respondent cannot be held 15 liable for acts of an independent contractor.

In light of the above averments and the fact that the Applicant concedes to being responsible for posting the video, the subject of *Civil Suit No. 1390 of 2024*, this makes the Applicant a necessary party for purposes of resolving the issues raised in the suit to their finality.

20 Also, 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, not 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 25 cause or matter. Therefore, the 1st Respondent's contention that the Applicant should not be added as a Defendant because he has no cause of action against it lacks merit.

Regarding the 1st Respondent's other contention that the Applicant and the 2nd Respondent should instead institute 3rd party proceedings, it is 30 now trite that 3rd party proceedings are instituted in scenarios where the Defendant admits being liable or is held to be liable but there exists a

- 5 contractual relationship for contribution, indemnity, subrogation or warranty between the Defendant and the 3rd party. In the case at hand, however, much as there exists a contract for compensation, the Defendant in *Civil Suit No. 1390 of 2024* denies being liable for the alleged infringement. Also, the Applicant, who seeks to be added as a Defendant, 10 contends that much as the video was posted by its employee, there was no - infringement occasioned on the 1st Respondent.

Therefore, in the interest of justice, avoiding multiplicity of suits and effectually and completely adjudicating upon and settling all the questions involved in *Civil Suit No. 1390 of 2024*, TBH Holdings Limited is hereby 15 added as the 2nd Defendant in *Civil Suit No. 1390 of 2024*.

Issue No. 1 is hereby answered in the affirmative.

## 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* 20 *the Court otherwise directs, be amended in such a 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."*

In light of the above, the 1st Respondent shall amend his pleadings.

- 25 Accordingly, this application is granted with the following orders: - 1. The 1st Respondent is hereby directed to add the Applicant as the 2nd Defendant in *Civil Suit No. 1390 of 2024* and to amend the pleadings accordingly and serve the Defendants with the amended plaint within seven (7) days from the date of this Ruling.

- 5 2. The Applicant is hereby directed to 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 fifteen (15) days after receipt of the written statement of defence. - 3. Costs of this application shall be in the cause. - 10 I so order.

Dated, signed and delivered electronically via ECCMIS this **28th** day of **March, 2025**.

Patience T. E. Rubagumya 15 **JUDGE** 28/03/2025