THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO.1000 OF 2014
(ARISING FROM MISCELLANEOUS CAUSE NO. 21 OF 2014)
COMFORM UGANDA LIMITED …………………….……APPLICANT
MEGHA INDUSTRIES (U) LTD………………………..…… RESPONDENT
BEFORE: HON. LADY JUSTICE FLAVIA SENOGA ANGLIN
This application was made under S.6 and 98 C.P.A and 0.51 rr 1, 2 and 3 of C.P.R.
The Applicant seeks to stay further proceedings in Miscellaneous Cause No. 21 of 2014 until the final disposal of High Court Civil Suit 02/2014, pending before Jinja High Court is completed.
Costs of the application were also applied for.
The application is supported by an affidavit deponed by Kajubi Muhammad Ali which was read and relied upon at the hearing.
Briefly, the grounds are that:-
- The issues in Miscellaneous Cause 21/14 are also directly and substantially in issue in a previously instituted suit – HCCS No. 02/2014 pending before Jinja High Court.
- The proceedings in Miscellaneous Cause 21/2014 are barred by S. 6 C.P.A.
- The High Court Jinja, has jurisdiction to grant the reliefs sought in Miscellaneous Cause 21/14.
- The matters in controversy between the parties can only be effectively decided by hearing Civil Suit 02/14 at Jinja High Court.
There is an affidavit in reply deponed by Mwesigye Myers, the Operations Manager of the Respondent Company. And an affidavit in rejoinder deponed by Kajubi Muhammad Ali.
The application was called for hearing on 19.11.14 in the presence of both parties and their Counsel.
Counsel for the Applicant recited the grounds in the motion and added that there is a counter claim filed in Civil Suit 02/14 by the Respondent in this application.
Also that, while submissions have been closed in Miscellaneous Cause 21/14, the proceedings should be stayed and the ruling not given because, S.6 C.P.A bars trial until an earlier suit has been disposed of.
Counsel relied on Osbornes Concise Law Dictionary for the definition of the term “trial”, asserting that Miscellaneous Cause 21/14 is barred by law.
To support his contention that the proceedings in that application are similar to those in the suit in Jinja, Counsel referred to paragraph 12 of the plaint – to state that the contest is over use of a trade mark. – The basis being mattresses the Applicant is producing and which the Respondent contends infringes on the products of the Respondent.
He argued that, while mattress Cover A was subject of consent, the remedy being sought in Jinja is to determine whether mattress covers are being used legally.
And Table 3 of the written statement of defence contends use of mattress covers and the remedies sought are the same as in Miscellaneous Cause 21/14.
Further that, infringement of consent judgment is also brought out, plus misrepresentation and passing off and the remedies sought in counter claim are similar to those in Miscellaneous Cause 21/14.
That this court should not dispose of main suit by use of affidavit evidence in the application, but that parties should be given a chance to adduce evidence and enable Applicant to show that the current mattress covers are different from those that were in use at the time of consent judgment.
The case of Bank of Baroda vs. SDV Transami Ug Ltd C.S. 1314/2000 and James Mundere Sunday vs. Pearl of Africa Tours and Travel Ltd C.S. 89/2011 were cited for the holding that “all issues need not be covered as long as they are similar to those in earlier logged suit.”
And the case of Tindyebwa Stephen vs. Alpha International Investments Ltd Miscellaneous Application 789/2005 to support submission that S.6 C.P.A is coached in mandatory terms and court has no discretion.
Further that, the Court of Appeal has declared that matters of law can be declared anytime even if submissions have been closed, to give effect to S.6 C.P.A.
He referred to Roko Construction Ltd vs. Mohammed Hamid CA 51/2001, and Makula International Ltd vs. Cardinal Nsubuga and Another C.A 04/81 to emphasize that “court cannot ignore an illegality brought to its notice.”
Asserting that the decision in Miscellaneous Cause 21/14 has not been made and matter is therefore under trial and wondering why the Respondent sought remedy here while asking Jinja Court to resolve similar issues, Counsel prayed for application to be allowed.
The application was vehemently opposed by Counsel for the Respondent who referring to the affidavit in reply contended that the application is a total abuse of court process and ought to be dismissed with costs.
Counsel urged court to look at the affidavit in reply in Miscellaneous Cause 21/14 – where Kajubi Muhammad Ali, in paragraph 11 and affidavit in rejoinder paragraph 6 indicated that the case in Jinja is distinct from Miscellaneous Cause 21/14.
And that since the application is pending ruling; it would be an abuse of court process to stay delivery thereof.
It was stressed that the term “abuse of court process” was defined in the case of Uganda Land Commission vs. James Mark Kamoga and Another S.C. CA 08/2004 – where Justice Mulenga as he then was, said that it “involves use of process for improper purpose”.
It was argued that the issue of Jinja case is pending in Miscellaneous Cause 21/14 which is due for ruling, hereby making the current application an abuse of court processs.
Also that paragraph 5 and 6 of the affidavit indicates that the case in jinja was adjourned to enable ruling in Miscellaneous Cause 21/14 to be delivered. And Counsel in that case, who swore affidavit of support in present application stated that issues of Jinja case are different from issues in Miscellaneous Cause 21/14; and is now turning around to say matters are same. That Applicant is accordingly stopped from saying application and suit are the same.
It was pointed out that the attachment of infringing material was frustrated by police insisting that Applicant should be informed of the execution process, resulting in disposing off / hiding infringing materials.
Commenting on S.6 C.P.A, Counsel stated that the gist is “matter in issue being substantially the same as in another case.” He cited the case Jadva Karson vs. Harnam Singh Bhogart C.A EA in support – where matter in issue refers to the entire subject in controversy and not just one or more issues being common. And that provided the circumstances give rise to a different cause of action, party is allowed to bring successive actions.
He argued that Application 21/14 is based on a different cause of action to wit, disobedience of court orders and continuing to manufacture and sale offending mattresses while the case in Jinja refers to interference with the Applicant Company. And that the prayers in the counter claim are not the same as those in Application 21/14 and that therefore this current application should not be granted.
Referring to paragraph 9 of the affidavit in reply, he said that the issues of mattress covers were determined by the consent judgment and the issue in Application 21/14 is whether, the Applicant has continued to do what they agreed not to do. And that determining that issue will not prejudice civil suit 02/14 pending in Jinja.
It was then prayed that the application be dismissed with costs and the ruling in Miscellaneous Application 21/14 be delivered.
In rejoinder, Counsel for the Applicant maintained the earlier submissions.
After hearing the submissions of both Counsel, I wish to observe from the outset that Miscellaneous Cause (Application) No. 21/14 stems from Civil Suit 269/11 an earlier suit than that of Jinja Civil Suit 02/14.
And that this court decided in the ruling that arose out of the preliminary objection raised in application 21/14 that, all issues raised in that application could only be properly disposed of if the application was heard on merit. – Refer to ruling dated 28.04.14.
It was clearly submitted by the Applicant, now Respondent in Miscellaneous Application 21/14 that as much as the application intends to punish the Respondent for violating orders in Civil Suit 269/11, the procedure adopted by the Applicant was not suitable and that the issues before court would affect the suit pending in Jinja and they could not be tried by way of application.
The objection was overruled and court decided that Application No. 21/14 be heard on its merits.
Having found in the earlier ruling that Application 21/14 stems from Civil Suit 269/11, - which is an earlier suit than Civil Suit 02/14 pending in Jinja, court finds that S.6 C.P.A is not applicable to the circumstances of the present application.
The Section provides that, “no court shall proceed with the trial of any suit or proceedings in which the matter in court is also directly and substantially in issue, in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where that suit or proceeding is pending in the same or any other court having jurisdiction in Uganda to grant the relief claimed.”
While I agree that the provision is couched in mandatory terms, I find that since Application 21/14 arises out of the earlier suit, it should be disposed before Civil Suit 02/14 is heard and disposed of.
The issues for determination in Application 21/14 stem from a consent judgment entered between the parties and the orders of which the Respondent now contends have not been complied with by the Applicant in the present application.
It follows therefore in my view that, the Application 21/14 arising of the earlier suit 269/11 should be disposed of before civil suit 02/14 can be heard. Otherwise the orders in civil suit 269/11 would have been given in vain.
The application concerns contempt of the court’s judgment/decree issued on 03.02.12 and the adverse consequences arising as a result. There is no indication that the said decree was ever set aside. While the suit in Jinja filed by the Applicants seeks to stop the Respondents/ Defendants from interference with the Trade Mark allegedly registered after the consent judgment was entered.
Court finds that the issues in the application and those in the suit are also different.
For all those reasons, the application to stay the disposal of Application 21/14 is disallowed.
Court to go ahead and deliver the pending ruling in that case. Costs of the application to be met by the Applicant.
FLAVIA SENOGA ANGLIN