[2019] UGCommC 32

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISC. APPLICATION NO. 40 OF 2019 ARISING OUT OF CIVIL SUIT NO. 843 OF 2018

**SAM AKANKWATSA================APPLICANT**

#### **VERSUS**

UNITED BANK OF AFRICA (U) LIMITED $===RESPONDENT$

$10$

$5$

# BEFORE: THE HON. JUSTICE RICHARD WEJULI WABWIRE

### **RULING**

The Applicant's application is brought under order 9 rules 2 and $3(1)$ a, b, d, g, 2, 0.19, 0.36 rule 3 and 0.52 rule 1 and 3 of the Civil Procedure Rules and S.98 of the CPA. It is for 15 orders that civil suit 843/2018 be dismissed for being Res Judicata and for an order declaring that summons were not properly served and for costs of the Application to be provided for.

The Application is supported by the Affidavit of Sam 20 Akankwatsa the Applicant. The Respondent filed an Affidavit in reply deponed by Judy Wambaire, the Head of Legal


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Department of the Respondent. The Applicant also deponed an Affidavit in rejoinder.

Both the Applicant and the Respondent addressed the court 25 in written submissions.

The Applicant was represented by Akampumuza and Co. Advocates while the Respondent was represented by OSH Advocates.

The background to the Application is that the Applicant was 30 previously sued by the Respondent in CS 787 of 2016 which was dismissed for non-service on the Applicant. The Respondent instituted another suit, CS 391 of 2017 but again failed to serve the Applicant who successfully challenged the legality and substance of the suit in court. 35 The suit was dismissed.

The Respondent filed yet another suit CS 843of 2018, upon which the Applicant brought the instant application to challenge the suit for being incompetent, bad in law and barred on account of Res Judicata.

I have carefully considered the Application and Affidavits filed in support and opposition to the Application. I have also carefully analyzed the written submissions of both parties on this matter and addressed my mind to the law.

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I will start by dealing with issue of Res Judicata.

The Applicant's Counsel submitted that the Respondent's suit is incompetent on account of Res Judicata, it having been competently adjudicated upon on preliminary points of law before a Judge of this High Court.

Counsel submitted that the Applicant obtained a Judgment, Ruling and Orders against the Respondent concerning these matters which have never been appealed or set aside. That the Respondent ignored the dismissal orders and brought this suit. That Section 2 of the Civil Procedure Act defines a suit to mean all civil proceedings commenced in any manner prescribed. The word "prescribed" means prescribed by the rules. That consequently the Applicant's Application was a "suit" being commenced for the first time.

- That where a procedure is provided for, the parties are 60 obliged to follow it. That in the instant case since the Respondent did not seek extension of time within which to effect service, all subsequent action in respect of the Application are null and void. - In reply the Respondent's Counsel submitted that the proper 65 interpretation of the law relating to Res Judicata in respect of section 7 of the Civil Procedure Act cap 71 is that in order to give effect to the plea of Res Judicata the matter directly

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and substantially in issue must have been heard and finally disposed of in the former suit.

He cited the case of **Onzia Elizabeth vs Shaban Fadul Civil** Appeal No. 0019 of 2013 where court stated that where an earlier suit had been dismissed on a preliminary point, such a dismissal was not found to be a bar to a subsequent suit between the same parties on the same subject matter.

75 Counsel submitted that the Applicant, by his own admission concedes that Civil Suit No. 787 of 2016 and Civil Suit No. 391 of 2017 were dismissed for non-service.

That the substantial issue in the suit was not whether or not service was effected, but rather whether the Applicant is 80 indebted to the Respondent. That as such the matter directly and substantially in issue was not heard and finally decided in the former suits and as such the Applicant's plea of Res Judicata be dismissed and Civil Suit No. 843 of 2018 be heard on its merits. 85

In rejoinder, the Applicant's Counsel submitted that the Respondent admits all the three tenets of Res Judicata set forth in the Applicants' submissions but only contests the forth tenet in S.7 of the CPA, which states that the issue in the subsequent suit must have been heard and finally decided. Counsel maintained that the Respondent's suit is

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incompetent as it amounts to Res Judicata having been conclusively adjudicated upon on Preliminary points of law before the Judge of the High Court as such bringing Civil Suit No. 843 of 2018 between the same parties and with the same issues amounts to Res Judicata and is therefore a blatant abuse of court process.

### **Ruling**

The principle of Res Judicata is provided for under S.7 of 100 the Civil Procedure Act Cap.71 which provides that;

"No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them 105 claim, litigating under the same title, in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised, and has been heard and finally decided by that court."

The guidelines in applying the above principle are laid out in 110 the case of Maniraguha v Nkundiye, CA No. 23 of 2005, where the court of Appeal relied on the decision in **Ponsiano**

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Semakula vs Sasare Magala & others, 1993 KALR 213 which was to the effect that:

"the court before which the issue of Res Judicata is raised 115 must peruse the judgment of the court in the first suit and ascertain that the judgment exhaustively dealt with the issues raised in that case and if possible the court should peruse the whole court record so that it gets the opportunity to appraise itself of all matters raised in the earlier suit in 120 order to decide whether the plea of Res Judicata succeeds or not."

I have perused the decisions in CS No. 787/2016 and MA 1233 of 2017 arising from CS No. 391/2017 to ascertain whether the issue of Res Judicata can be raised in respect of CS No. 843/2018.

I have looked at attachments P1 and P2 to the Affidavit in support of the application. They include Annexture A which is a plaint in respect of CS No. 787/2016, UBA Vs $12/10/2016$ . Under Akankwatsa which was filed on paragraph 4 of the said Plaint, the plaintiff's suit is for recovery of Ugx. 126,120,898/ from the defendant. Annexture B dated 25/11/2016 thereto is a dismissal of CS No. 787/2016 for non-service of summons. Annexed to the

Page 6 of 11 Affidavit in Support of the Application is the Ruling and 135 Order respectively dated 17/08/2018 in which CS No. 391/2017, UBA Vs Akankwatsa is dismissed for service of summons out of time

According to the Ruling in CS 391/2017 the said suit was for recovery of Ugx. 126,120,898/ from the defendant. 140 Paragraph 3 of the plaint in respect of the current suit CS No. 843/2018, UBA Vs Akankwatsa, shows that the plaintiff's claim is also for recovery of Ugx. 126,120,898/ from the defendant.

The issue in CS No. 843/2018 has been directly and 145 substantially in issue in the former suits between the same parties, that is CS No. 787/2016 and CS No. 391/2017.

The other factor to be considered under this provision of the law is that the issue must have been heard and finally decided by that Court.

In the former suits before this court CS No. 787/2016 and CS No. 391/2017 were dismissed for non-service of summons. The suits were dismissed on the basis of preliminary objections. The question therefore is whether a preliminary objection amounts to hearing an issue and finally deciding it.

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$\mathcal{N}$

A Preliminary Objection is used to challenge the sufficiency of a pleading. Hearing and determining a suit entails evaluation of evidence and arriving at a decision based on such evaluation as opposed to determine a suit premised on a preliminary objection.

In the case of Onzia Elizabeth vs Shaban Fadul, CA No. 0019/2013, Justice Mubiru held that;

"... to give effect to the plea of Res Judicata, the matter directly and substantially in issue must have been heard and finally 165 disposed of in the former suit... For the doctrine to apply there must have been a decision on the merits of the case. Therefore, where the decision was not made on the merits of the suit, the matter cannot be Res Judicata... Therefore in Busuulwa Isaac Bob v. Kakinda Ibrahim [1979] HCB 179, 170 where the earlier suit had been dismissed on a preliminary point, such a dismissal was found not to be a bar to a subsequent suit between the same parties on the same subject matter."

While dealing with the issue of Res Judicata in Mansukhlal 175 Ramji Karia & Another V AG Civil Appeal 20/2004 (UGSC) Tsekoko JSC as he then was held that the proper practice is that when Res Judicata is pleaded as a defence, Page 8 of 11

a trial court should when the issue is contested, try the issue and receive some evidence so as to establish whether the 180 subject matter of the dispute between the parties has been litigated upon.

I have had the benefit of perusing the Plaint in CS 391/2017 and that in CS 843/2018. I have also perused the Ruling of my learned Judge Brother Justice David Wangutusi in CS 185 391/2017 and based on that, my conclusion is that whereas he only rightly directly addressed himself to the issue of ineffective service of summons, which was the contest before him, this does not save the rest of the claim under the suit.

Dismissal of the suit on account of a failure to fulfil a 190 statutory requirement as was the case in CS 391/2017 determines the suit in its entirety.

In this position, which is a deviation from the decision in Onzia Elizabeth vs Shaban Fadul, CA No. 0019/2013, I am fortified by the decision of the Justices of the 195 Constitutional Court in Tukamuhebwa George & other V AG and UWA, Constitutional Petition No. 59 of 2011, which was righty cited by Counsel for the Applicant, in which they held that: "In this petition, it appears to us that when a case is dismissed on a point of law then the dispute 200

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has not been adjudicated upon. It appears to us that the petitioners take the view that a dismissal of a case on a point of law is akin to a dismissal of the case on a technicality. Nothing can be further from the truth. A dismissal on a point of law is fundamental and in the eyes of the law resolves the dispute unless there is an appeal and the dismissal is set aside with or without further orders. The matter was therefore determined by the High Court and as a result we find it is res judicata in respect of enforcement and no further suit can be brought at the High court or any other court in this regard"

When the learned Judge dismissed CS 329 of 2017 therefore, he resolved the entire suit and the Plaintiffs only remedy would lie in an appeal against his ruling. There is nothing to show that there is as appeal by the Plaintiffs from the decision that dismissed CS 329/2017.

It is my finding therefore that CS 843 is res judicata and it is hereby dismissed with costs awarded to the Applicant.

Delivered this 4^th day of October, 2019.

$\Lambda$ Richard Wejuli Wabwire $22₀$ JUDGE


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1. M. Hinlez<br>Godfiey, E. C.<br>Respondent.<br>3.

2. Me Maurassure<br>Almine, Legal<br>Assoración A. B. 4. Manguduczo<br>Jame & W<br>Applicant.

JUDGE/REGISTRAR

4/19/19-10:30 dr

de-14 wayor Hauret.

CERTIFIED CORRECT<br>SIGN: 04 OCT 2019 **DEPUTY REGISTRAR**

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