THE REPUBLIC OF UGANDA,
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO 538 OF 2013)
(ARISING FROM CIVIL SUIT NO 344 OF 2013)
ANDREW BABIGUMIRA}..................................................................... APPLICANT
JOHN MAGEZI}................................................................................ RESPONDENT
BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA
The Applicant commenced this application under Order 41 rules 1 and 2 of the Civil Procedure Rules for a temporary injunction to issue restraining the Respondent or his agents from any interference with or further dealings in the land comprised in Kyadondo block 194 plot 45 at Kungu pending the final disposal of the suit and for costs of the application be provided for.
The grounds of the application are that the Applicant is still in possession of the suit land. Secondly the Respondent and his agents are threatening to dispossess the Applicant of the suit land. Thirdly the Respondent and his agents are threatening to destroy the Applicant’s gardens. Fourthly if the Respondent changes the status quo, the Applicant will suffer irreparable damage. Fifthly that the Applicant filed the main suit from which this application arises for a permanent injunction and this raises bona fide triable issues. Lastly the Applicant avers that it is just and equitable that the status quo is maintained.
The application is supported by the affidavit of the Applicants who deposes that he is still in possession of the suit property and claims interest as the owner thereof. He deposes that the land was improperly registered in the names of the Respondent and the others filed an action against the Respondent in HCCS number 344 of 2013. The rest of the deposition repeats the averments in the chamber summons.
In reply the Respondent strongly opposed the application and filed an affidavit in reply. In the affidavit in reply, he deposes that the application before the court has no merit, is frivolous, vexatious and an abuse of court process and designed to delay court process. Firstly he deposes that the affidavit in support of the application is not dated and does not comply with the provisions of section 5 of the Commissioner for Oath (Advocates) Act cap 5 for which the Applicant should be penalised in costs. Secondly the Respondent bona fide, legally, honestly and genuinely purchased for value without any fraud and dishonesty the suit property for consideration of 150,000,000/= Uganda shillings from Global Trust Bank Ltd, being the mortgagee in possession of the property with powers of sale without recourse to court. Thereafter the Respondent secured registration of the property into his names on 6 October 2011 under instrument number KLA 519948. Thereafter the Applicant instituted civil suit number 161 of 2012 in this honourable court in which he sued Messieurs Global Trust Bank, the Respondent, David Bashaija trading as Ultimate Court Bailiffs and Auctioneers and the Chief Registrar of Titles seeking a declaration that the sale of the land by Messieurs Global Trust Bank Ltd was unlawful and illegal.
On 13 June 2013, the Applicant's civil suit number 161 of 2012 was dismissed with costs under order 17 rules 4 of the Civil Procedure Rules and rule 7 of the Constitution (Commercial Court) Directions 1996. The Applicant did not appeal against the judgement/decree in the said High Court (Commercial Division) Civil Suit Number 161 of 2012. In the premises the Respondent deposes that the Applicant’s main suit and the application against the Respondent are without merit, is frivolous, vexatious and the Applicant does not have a prima facie case with a likelihood of success. The Respondent deposes that he is in possession of the suit property and accordingly there is no threat against the Applicant. It is not in the interest of justice to grant the application as the Respondent is likely to suffer great loss and inconvenience as the bona fide registered proprietor of the suit property. Furthermore the Respondent deposes that the balance of convenience favours him as the registered proprietor of this property and a decree holder in civil suit number 161 of 2012. The Applicant would be adequately compensated by an award of damages for the loss he may have sustained as a result of the Respondents possession of the suit property. Consequently the application is brought in bad faith and is a blatant abuse of court process and ought to be dismissed with costs.
At the hearing of the application the Applicant was represented by Counsel Nyote David Innocent while the Respondent appeared in person and represented himself. The Respondent intimated to court that he had objections to the Applicant's application and the court allowed the parties to address it in written submissions.
Respondent's Preliminary Objection on a Point of law
Firstly the Respondent's objection is that the suit giving rise to the application namely civil suit number 344 of 2013 is res judicata. This is because the matter in issue in the present suit has been directly and substantially in issue in a former suit namely HCCS number 161 of 2012 based on the same facts, between the same parties and was finally decided by a court of competent jurisdiction on 13 June 2013. He submitted that the legality of the Applicants suit is a question of law, which can be entertained at any time whether or not it was pleaded and whether such an issue was brought to the attention of the court by the parties or not. Counsel supported his contention with some authorities.
On the question of whether the suit is res judicata, the Respondent relies on section 7 of the Civil Procedure Act and the case of Karia and Another versus Attorney General and Others  1 EA 83 where the Supreme Court and particularly in the judgment of Tsekooko JSC in interpreting section 7 of the Civil Procedure Act held that the following minimum conditions are to be satisfied for a plea of res judicata succeeds. These are:
- That there has to be a former suit or issue decided by a competent court.
- The matter in dispute in the former suit between the parties must also be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar.
- The parties in the former suit should be the same parties or parties under whom they or any of them claim, litigating under the same title.
The Respondent's submission is that in April 2012, through Messieurs Kashillingi, Rugaba and Associates, the Applicant instituted civil suit number 161 of 2012 seeking inter alia for a declaration that the sale of the suit property by the first Defendant to the second Defendant was fraudulent, unlawful and illegal. For a declaration that the first Defendant's action on the second Plaintiffs account held with the first Defendant were unauthorised and unlawful. An order for cancellation of the second Defendant as a proprietor of the suit property, a permanent injunction restraining the Defendant from interfering with the suit property and in the alternative for a declaration that the sale of the suit property at Uganda shillings 124,000,000/= was grossly undervalued.
Civil suit number 161 of 2012 came for hearing on 13 June 2013 in the presence of the Applicants Advocate whereupon it was dismissed under Order 17 rule 4 of the Civil Procedure Rules and The Constitution (Commercial Court) Directions 1996, rule 7 thereof. The Respondent relies on the decision of the High Court in AP Bhimji Limited versus Michael Opkwo, High Court miscellaneous application number 423 of 2011 where honourable justice Eldad Mwangusya considered the effect of a decision made under Order 17 rule 4 of the Civil Procedure Rules and also the judgement in Salem A.H Zaidi vs. F.H Humeidan  EA 92 where it was held that a decision under the rule was a decision on the merits and the dismissal of the earlier action operated as res judicata. Consequently the present suit is barred by the doctrine of res judicata and the decision of the court dated 13th of June 2013 finally determined the dispute between the parties. The instant application is not only a nullity but also illegal on the basis of the decision of the Court of Appeal in Makula International Ltd versus His Eminence Cardinal Nsubuga and Another  HCB at page 11 where it was held that the court cannot sanction what is illegal and an illegality once brought to the attention of the court, overrides all questions of pleadings including any admissions made therein.
It is the Respondent's prayer that the court finds that the instant application is that the suit is caught by the rule of res judicata. Secondly that the Applicant's application is an abuse of court process designed to occasion a miscarriage of justice as it arises out of the matter which has been adjudicated upon by this honourable court. In the premises he prayed that the application was barred in law and incompetent and should be dismissed with costs.
Reply by Applicants Counsel
In reply the Applicants Counsel agrees with the statement of law relating to the doctrine of res judicata and the fact that a point of law may be raised at any stage of the suit.
The Applicants Counsel first submits on questions of fact that their firm was not informed by the Plaintiffs that there had been an earlier similar suit filed in court between the same parties. They were only shown a copy of the notice of intention to sue authored by Kashillingi Rugaba and Associates as well as a draft plaint which had not been filed in court. They consequently filed civil suit number 344 of 2013 in ignorance of the existence of an earlier suit. Later on 8 July 2013, their clients showed them a photocopy of a taxation hearing notice in civil suit number 161 of 2012 between the same parties and they promptly wrote to Messieurs Kashillingi Rugaba and Associates. Consequently the Plaintiff’s Counsels perused the court record and submits that the current suit was not marginally covered by the doctrine of res judicata. Firstly the law firm which filed the suit did not have instructions to file the suit. A suit filed without instructions cannot be construed to be the Plaintiff’s suit. The firm of Kashillingi Rugaba and Associates has since undertaken to pay the costs occasioned by the false suit. The court cannot despite admission of the lawyers who filed the suit has having had no instructions to do so, insists that the suit was the Plaintiffs suit. The court in the ruling observed that the suit was prematurely filed since Counsel did not have instructions and dismissed inter alia on that ground. Where a suit has been dismissed on a preliminary point of law, the Plaintiff did not have opportunity to be heard on merits and a new suit on the same matter cannot be res judicata according to the case of Kercarchand vs. Jan Mohammed (1919 – 21) 8 EALR 64. Furthermore Counsel submits that the court did not dismiss civil suit number 161 of 2012 under Order 17 rule 4 of the Civil Procedure Rules but rather dismissed it under rule 7 of the Constitution (Commercial Court) Directions 1996. On the other hand under Order 17 rule 4 of the Civil Procedure Rules, the court makes a decision which amounts to a judgement. According to Webster's New World dictionary, second edition, a decision is inter alia defined as "the act of deciding settling a dispute or questions by giving a judgement." Any decision made under Order 17 rule 4 of the Civil Procedure Rules is a judgement and makes the matter res judicata. However there is no such judgment by this honourable court in HCCS number 161 of 2012. To dismiss on the other hand is to reject a claim or action.
Rejoinder of Respondent
In rejoinder the Respondents filed written submissions on the two points namely that the law firm of Kashillingi Rugaba and Associates did not have instructions to act for the Plaintiffs when they filed civil suit number 161 of 2012. Secondly that the court did not dismiss civil suit number 161 of 2012 under Order 17 rule 4 of the Civil Procedure Rules but under rule 7 of the Constitution (Commercial Court) Directions 1996 and therefore the court's decision does not make the matter res judicata.
On ground one the Respondent’s rejoinder is that the submission is false because the director of the second Applicant Company attended the mediation hearing in civil suit number 161 of 2012 together with their Counsel. Secondly the first Applicants signed a witness statement in civil suit number 161 of 2012 on 12 June 2013. Having participated in the proceedings, the Applicants are estopped from pleading that Messieurs Kashillingi Rugaba and Associates did not have instructions to act for the Plaintiffs in filing civil suit number 161 of 2012.
On the question of the new advocates not being aware of civil suit number 161 of 2012 by the time they filed civil suit number 344 of 2013, the new advocates namely Messieurs Nyote and Co Advocates filed a notice of instructions on 8 July 2013 but the Applicants never withdrew instructions from Messieurs Kashillingi Rugaba and Associates. It is therefore implied that at the time of instituting civil suit number 344 of 2013, both firms had instructions and therefore civil suit number 344 of 2013 was filed the Plaintiffs Counsels were fully aware that they had been an earlier civil suit similar to the current suit.
The documentary evidence and relied upon by the Plaintiffs/Applicants Counsel is to the effect that Messieurs Kashillingi Rugaba and associates have since undertaken to pay costs associated with the previous suit does not reveal that undertaking. It is a communication by Messieurs Kashillingi Rugaba and associates addressed to Messieurs Nyote and Co advocates proposing to settle matters arising out of miscellaneous application number 677 of 2013 with the Respondents firm and Messieurs Mugenyi and Company Advocates.
Furthermore the Applicants filed miscellaneous application number 677 of 2013 for review of the court order dismissing civil suit number 161 of 2012 on grounds that the Applicants were not aware of civil suit number 161 of 2012 filed by Messieurs Kashillingi Rugaba and Company Advocates. The court found that the Applicants were aware of the filing of the civil suit and that the managing director of the second Applicant Company which is a limited liability company filed a statement on oath in the same suit. Consequently the submission of the Applicants that the law firm of Kashillingi Rugaba and associates did not have instructions to act for the Plaintiffs when the filed civil suit number 161 of 2012 is a blatant lie intended to delay or defeat the ends of justice.
As far as ground two is concerned, the Respondent maintains that the court relied on Order 17 rule 4 of the Civil Procedure Rules which was quoted therein. On the basis of that provision the court exercised its discretion under rule 7 of the Constitution (Commercial Court) Directions 1996 and dismissed civil suit number 161 of 2012 for non-compliance with the courts directives for further progress of the suit.
The court decree in civil suit number 161 of 2012 was given under the hand and seal of this honourable court on 2 July 2013 and clearly certified that the suit was dismissed pursuant to the provisions of Order 17 rule 4 of the Civil Procedure Rules and rule 7 of the Constitution (Commercial Court) Directions 1996. Furthermore the Respondent maintains that the court's decision which was given subsequent to the filing of the first Applicants witness statement is deemed to be a decision on the merits. Counsel reiterated submissions that a decision under Order 17 rule 4 is a judgement on the merits for purposes of res judicata. Because it was a decision on the merits, and no appeal had been preferred against the decree, civil suit number 344 of 2013 is res judicata.
I have carefully considered the preliminary objection to the Applicant's application for a temporary injunction, the written submissions and authorities cited by both Counsels. The Respondent is an advocate of the High Court and represented himself.
I will not dwell on the issue of whether Messieurs Nyote and Company Advocates were aware of civil suit number 161 of 2012 which has been dismissed. After the dismissal of HCCS No. 161 of 2012, the Applicants filed Miscellaneous Application number 677 of 2013 for review of the judgment dismissing the suit. The basis of the application was the assertion that the Applicants had not given instructions to Messieurs Kashillingi Rugaba and Associates to file civil suit number 161 of 2012. The basic ground of the application for review was that the Applicants were not aware of the institution of the suit and had not instructed Messieurs Kashillingi Rugaba and Associates to file the action. The ruling of the court was delivered on 25 September 2013 and at page 8 thereof the court held as follows:
“On the basis of the above facts, I agree with the Respondents that the Applicants were aware of the suit. The Applicants were further aware that the suit was being handled by Messieurs Kashillingi and Rugaba and Associates. I agree that the affidavit has grave falsehoods. More particularly the only material averments which would have formed the basis of the application are that the Applicants were not aware of the suit and the suit was instituted without their instructions. The evidence on the record is clear that the Applicants were aware about the institution of the suit; the first Applicant filed a statement on oath in the same suit and is the managing director of the second Applicant which is a limited liability company. The knowledge of the first Applicant is imputed on the second Applicant as well. The affidavit is therefore false and cannot be relied upon in any application. The affidavit of Andrew Babigumira sworn to on 31 July 2013 is accordingly struck out.”
Consequently on the first ground in response to the objections that the Applicants had never given instructions to Messieurs Kashillingi Rugaba and Associates and therefore are not bound, the court has already ruled that this was not true in the sense that the Applicant participated in civil suit number 161 of 2012 according to my ruling quoted above. Consequently it is not a sufficient answer to the plea of res judicata.
I will therefore consider the second issue as to whether the decision of the court was made under order 17 rules 4 of the Civil Procedure Rules. I have noted that the submissions of the Respondent in rejoinder rely on the decree of the court which had been extracted. The decree was signed by the registrar of the court and provides that the suit was dismissed under Order 17 rule 4 of the Civil Procedure Rules. However, a decree is extracted from a judgement and there is a variance between the submissions of the Respondents Counsel and that of the Applicants Counsel on the question of whether the dismissal was made under Order 17 rule 4 of the Civil Procedure Rules or the Constitution (Commercial Court) Directions 1996 rule 7 thereof or both.
Before going into the evidence, it is necessary that the definition of a decree under section 2 of the Civil Procedure Act is considered. A "decree" means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to any of the matters in controversy in the suit and may be either preliminary or final. Consequently a decree results from an adjudication of any matters in controversy in a suit.
Order 21 rule 6 (1) of the Civil Procedure Rules provides that a decree shall agree with the judgement. If shall contain the number of the suit, the names and description of the parties and particulars of the claim and it shall specify clearly the relief granted or other determination of the suit. The decree shall be endorsed by the registrar under Order 21 rule 7 and any dispute between the registrar and the parties as to the terms of the decree shall be determined by the judge who pronounced the judgement and the parties shall be entitled to be heard on the terms of the decree if they so desire.
From the record available to the court in the proceedings on 13 June 2013, the Respondent Counsel John Magezi, prayed that the suit is dismissed under Order 17 rule 4 of the Civil Procedure Rules for non-compliance by the Plaintiffs. The ruling of the court which is in typescript is here in below reproduced for ease of reference and the audio proceedings can also be accessed and is as follows:
Order 17 rules 4 of the CPR provides that where a party to whom time has been given fails to call evidence or produce witnesses or perform any other necessary act the court may proceed to decide the suit forthwith.
In this case there was a deliberate frustration of the processes of scheduling by the Plaintiff’s Counsel because his has not yet resolved the question of instruction fees with his client. Apparently there is promise of his client to resolve his problem of fees. Counsel has no good reason why he did not participate in the joint scheduling exercise inter partes and even after reminders by his colleagues to the extent that the conference is frustrated. The Plaintiff has not appeared to give any explanations as directed by the court. Yet Counsel has held out to be duly instructed. The action was filed by the Plaintiff’s Counsel and the reasons that there was no proper instruction by way of fees means that the suit was prematurely filed. In the premises the Plaintiffs action is dismissed under the provisions the Constitution (Commercial Court) Directions 1996 rule 7 thereof which gives a commercial court judge discretion to dismiss an action for non compliance with his or her directions for further progress of the suit. It is dismissed with costs.”
It is clear from the above that the action was dismissed under the Constitution (Commercial Court) Directions 1996 rule 7 thereof. It is true that Order 17 rule 4 of the Civil Procedure Rules was the rule under which the Respondent moved the court. However the court did not invoke Order 17 rule 4 but chose to invoke the provisions of rule 7 of the Constitution (Commercial Court) Directions 1996 which was not cited by the Respondent.
It is also evident that on that day, the case had come for pre-trial conferencing and not for hearing. Order 17 rule 4 deals with a situation where a party to a suit who had been given time to produce his or her evidence or to cause the attendance of his or her witnesses or to perform any other act necessary for the further progress of the suit in which time might have been allowed does not do so. The court had deliberately quoted rule 7 of the Constitution (Commercial Court) (Practice) Directions and specifically invoked it. Rule 7 provides as follows:
"Failure by a party to comply in a timely manner with any order made by the commercial judge in a commercial action shall entitle the judge, at his or her own instance, to refuse to extend any period of compliance with an order of the court or to dismiss the action or counterclaim, in whole or in part, or to award costs as the judge thinks fit."
Both Counsels have not addressed the court as to whether a dismissal under the above quoted rule 7 is a dismissal on the merits. In my opinion it is not a dismissal on the merits of the action but a dismissal for non-compliance with a procedural step. However, it may also depend on the stage at which the suit is dismissed. At the pre-trial level, suits ought not to be dismissed on the merits. Rule 7 complements rule 6 which provide that at the discretion of the commercial court judge, a preliminary hearing may be held. Of particular relevance is rule 6 (4) which provide as follows:
"The court will seek to set realistic time limits for hearing. Once established, those time limits will be expected to be adhered to and extension will only be granted in special circumstances."
In other words rule 7 of the Constitution (Commercial Court) (Practice) Directions deals with non-compliance of the parties with time lines set by the judge. In this particular case the parties had been given timelines within which to meet and come up with a joint scheduling memorandum in compliance with Order 12 of the Civil Procedure Rules. However, the Plaintiff’s Counsel dragged the process and frustrated it because he had not yet been paid and was still negotiating instruction fees. As a consequence of the failure to cooperate in the conferencing inter parties by Counsels outside court, all the three Counsels for the Defendants were frustrated in their efforts.
Adjudication under Order 21 rule 4 of the Civil Procedure Rules is ordinarily a determination of the issues in controversy. Order 21 rule 4 provides as follows:
"Judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision on the case and the reasons for the decision."
Rule 5 provides further that:
"In suits in which issues have been framed, the court shall state its findings or decision with the reasons for the findings or decision upon each separate issue, unless the findings upon any one or more of the issues is sufficient for the decision of the suit."
Issues are based on material propositions of fact or law affirmed by one party and denied by the other party as defined by Order 15 rule 1 (1) of the Civil Procedure Rules. Section 7 of the Civil Procedure Act deals with adjudication of issues that arise where one party asserts something and the opposite party denies it even if the adjudication results in a dismissal.
Last but not least the question is whether the dismissal is on the merits. In the case of Isaac Bob Busulwa v. Ibrahim Kakinda  HCB 179, Justice Kantinti held on whether a suit is barred by res judicata, that the dismissal of a suit on a preliminary point, not based on the merits of the case, does not bar a subsequent suit on the same facts and issues between the same parties. In Frederick Sekyaya Sebugulu vs. Daniel Katunda  HCB 46 the Plaintiff's Counsel sought an adjournment because the Plaintiff was sick in Nairobi. The application for adjournment was refused and the Hon Judge dismissed the suit. Thereafter the Plaintiff moved under order 9 rules 24 and orders 9 rules 26 of the Civil Procedure Rules to set aside the order of dismissal of the suit and it was held that the dismissal could not be treated as res judicata because it was an order in the same case and not an order in a former suit, a necessary condition for application of the principle of res judicata.
Order 9 rule 19 (2) permits a Plaintiff whose plaint has been dismissed for failure to serve summons and who fails to apply for a fresh summons within a year, to file a fresh suit subject to the law of limitation. The dismissal does not operate as a bar to the bringing of a fresh suit. I do not see a difference in the quality of the dismissal under rule 7 of the Constitution (Commercial Court) (Practice) Directions from cases in which a suit is dismissed for nonappearance of a Plaintiff. In this particular dismissal, the Plaintiff’s Counsel represented to court that he had not finalised the question of instructions with his client and that he was in the finals stages of negotiating for their fees. The court held that the suit had been prematurely filed. In other words the Plaintiff was not ready to commence the action and the same when it was dismissed, could not operate as a bar to a subsequent suit.
Last but not least, the Respondent was awarded costs of the dismissal. Finally the question of whether the suit is res judicata rested on whether the dismissal of the suit was on the merits. It is my humble opinion that in the circumstances of this case, the dismissal of the civil suit number 161 of 2012 was not on the merits and therefore there was no adjudication of the matters in controversy in that suit so as to enable the Respondent to invoke the provisions of section 7 of the Civil Procedure Act.
In the premises, the Respondent’s preliminary objections are overruled with costs to abide the outcome of the application. Counsels will address the court on the merits of the main application by way of written submissions.
Ruling delivered this 15th day of November 2013.
Christopher Madrama Izama
Ruling delivered in the presence of:
Nyote David Innocent for the Applicants
Natukunda for the respondent
Respondent is absent
Christopher Madrama Izama
15th of November 2013