[2021] UGCA 217

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# clvlL APPEAL N0. r89 0F 2013

# (AR|S!NG FRoM CrVrL SU|T N0. 21 0F 2010)

# (CORAM: KAKURU, MADRAMA, KIBEEDI, JJA)

10 AMAMU LIMITED.....-. APPELLANT

# VERSUS

BARCLAYS BANK OF UGANDA LTD t.

. STELLAR PROPERTIES LIMITED RESPOTIDEhITS 2

(Appeat from the ruling of the High Court of llganda at Kantpala, (Commercial Division) before Hon. Mr. Geoffrey Kiryabwire dated 28h May, 2Ul3 in Civil Suit No. 2l of 20lA

## JUDGMENT OF CHRISTOPHER MADRAMA, JA

20 This is a first appeal from the Ruling of the High Court at Kampata in Civil Suit No. 21 of 2010 by Hon Justice Geoffrey Kiryabwire, J, as he then was, detivered on the 28th May, 2013.

The Appettant sued the Respondents in H. C. C. S No. 2l of 2010 for an order nuttifying the sate by the f irst Respondent, as a mortgagee, of the Appettant's property conrprised in LRV 2610 Fotio 7 Ptot 5 George Street, Kampala, known as Amarnu House. Further, the Appettant sought an order setting aside a consent Order between the Appettant and the first Respondent in H. C. C. S No. 310 of 2008, damages and costs of the suit.

30 At the hearing ot H. C. C. S No. 21 of 2010, both Respondents raised ^a preliminary objection that the suit is resTudicataas it is barred by Section 7 of the Civit Procedure Act and 0rder 7 rute 1l (d) of the Civit Procedure Rutes. lt was argued for the Respondents that the suit was the subject of a previous suit, High Court Civil Suit No. 310 of 2008 which resulted in ^a

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- ⁵ consent Decree dated ?rh January 2009 and a consenl 0rder dated l7'h December 2009. ln repty to the pretiminary objection, it was argued for the Appettant that the Consent Order did not finalty determine the rights of the parties in High Court Civil, Strit No. 310 of 2008, and that it was not a judgrnent of the court on the issues arising from the pLeadings of H. C. C. S No. 310 of - 2008. Further, it was subrnitted that the Consent Order was never signed by the parties and that it was tainted with fraud which rendered it ineffective. 10

The tearned trial Judge inler atia found that the Consent 0rder dated l?th December 2009 in HCCS l{o. 3'10 of 2008 revotved around the same suit property as in H. C. C. S No. 21 of 2010 which was brought before hirn, in so

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far as in it, the Appettant recognised the sale of the suit property to the second Respondent, and further, that deductions were made from the proceeds of the purchase price end a percentage therefrom was given to the Appettant. t5

The triat Judge uphetd the Respondents' pretiminary objections and dismissed the suit with costs. 20

The Appettant was not satisfied with the ruting of the learned triat Judge hence this appeat.

The appeal is based on the lol{owing grounds:

- l. The learned triat Judge erred in fact and law when he hetd that the AppetLant's Civit Suit t{s.21 of 2010 was res judicata and dismissed it accordingty; and - 2. The learned triat Jrdgn erned in fact and in law when he failed to property evaluate the evidence on record in regard to the ptea of res judicata and came to the wrong conctusion.

## Representation

At the hearing of the app€el, the Appettant was represented by Counsel Atfred 0ketto Oryem while the first Respondent was represented Counset Masembe Kanyerezi. The second Respondent was represented by CounseI

#### David FK Mpanga. The court was addressed by way of written submissions. $\mathsf{S}$ Submissions of the Appellant

The Appellant's Counsel submitted on one issue of:

Whether the learned trial Judge erred in fact and in law when he held that the Appellant's Civil Suit No. 21 of 2010 was res judicata and accordingly dismissed it with costs?

The Appellant's Counsel submitted that H. C. C. S No. 21 of 2010 was not res judicata since the matters raised by the Appellant in that suit were not directly and substantially in issue in the previous suit, vide H. C. C. S No. 310 of 2008. He submitted that the Consent Order arising out of H. C. C. S No. 310 of 2008, did not finally determine the rights of the parties in H. C. C. S No. 310 of 2008 and it was not a Judgment of the Court on the issues arising from the pleadings in H. C. C. S No. 310 of 2008. He submitted that the subject of the Consent Order was not sale of the suit property but rather delivery of vacant possession of part of the suit property. Further, the Consent Order was not procured by consent of the parties since none of the parties signed it.

The appellant's Counsel submitted that the impugned Consent Order did not arise from H. C. C. S No. 310 of 2008 because at the time of its execution, H. C. C. S No. 310 of 2008 had long been settled by a Decree which was extracted 12 months earlier in January, 2009. Counsel further contended that the court became *functus officio* upon issuing the Decree in H. C. C. S No. 310 of 2008 and therefore, the impugned Consent Order could not have arisen from H. C. C. S No. 310 of 2008. He submitted that had the trial Judge allowed a trial of the suit on its merits, the procedure leading to the Consent Order would have been adjudicated and its validity would have been verified.

Secondly, the Appellant's Counsel contended that the impugned Consent Order and Decree in H. C. C. S No. 310 of 2008 were procured by illegality, fraud, misapprehension and ignorance of material facts. He submitted that a Consent Judgment can be set aside for illegality, fraud or misapprehension of facts (See Attorney General & Uganda Land

#### $\mathsf{S}$ Commission v James Mark Kamoga & James Kamala, SCCA No. 8 of 2004).

Thirdly, the Appellant's Counsel submitted that in determining whether a suit is res judicata, the test is whether the Plaintiff is trying to bring before the court, in another way, in the form of a new cause of action that which has already been presented before a court of competent jurisdiction in earlier proceedings and has been adjudicated upon. If the question is resolved in the affirmative, the suit will be res judicata even in respect of issues which were not raised or determined in the previous suit provided they fall under the same subject as the matters raised in the previous suit and ought to have been raised in the previous suit, through the exercise of due diligence by the parties (See Semakula v Magala and others, [1979] HCB 90). The issue of whether a suit is *res judicata* is determined upon perusal

of the Judgment and the proceedings of the earlier suit (See decision of the High Court in Barclays Bank of Uganda Ltd v Jing Hong and Guo Dong, High Court Civil Suit No. 35 of 2009). Turning to the facts the appellants Counsel submitted that H. C. C. S No. 310 of 2008, was never tried. No issues were framed for trial and there was no determination on the merits. In the premises, he contended that the doctrine of res judicata was inapplicable.

Further, the matters substantially in issue in H. C. C. S No. 310 of 2008 are not the same as those in H. C. C. S No. 21 of 2010. In H. C. C. S No. 21 of 2010, the Appellant sought to impeach the sale of the suit property by the 1st 25 Respondent as a mortgagee and to set aside the Consent Order in H. C. C. S. No. 310 of 2008, whereas by the time H. C. C. S No. 310 of 2008 was filed, the suit property had not been sold and therefore the sale of the suit property could not have formed the subject of contention in H. C. C. S No. 310 of 2008. Further the appellants Counsel submitted that in H. C. C. S No. 21 of 2010, the 30 Appellant pleaded particulars of fraud and illegality and the learned trial Judge erred to hold that the Appellant did not plead particulars of fraud. Alternatively, Counsel submitted that once questions of illegality are brought to the attention of the Court, they override all questions of pleading (See Makula International Ltd vs. His Eminence Cardinal Nsubuga & 35 Another, [1982] HCB II). Further, the trial Judge ought to have conducted a

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- ⁵ trial and evaluated the evidence with regard to the issues affecting the tegatity of tl're Consent 0rder and the Consent Decree in H. C. C. S No. 310 of 2008. He fautted the learned triat Judge for dismissing H. C. C. S No. 2l of 2010 on a pretiminary objection without consideration of the facts (Eng. Yashwant Sidpra & another vs. Sam Ngude Odaka & others, H. C. C. S 2007). - The appettant's Counsel submitted that the learned triat judge relied on questions of fact that required to be tried first in arriving at his decision. For instance, he hetd that the Consent Order in H. C. C. S No. 310 of 2008 revotved around the same suit property and deductions were made from the proceeds of the sate and a percentage was given to the Appel.tant. The trial Judge further hetd that the Respondents attached to their pteadings in the High Court communications dated 8rh, l4th and l5rh December, 2009 that showed that the Appeltant knew about the impugned sate, the subject of the Consent Order dated lTth December, 2009. Counset submitted that these conclusions ought not to have been arrived at without a trial since they concerned questions of fact. Secondty, Counset submitted that the conctusion drawn by the triat Judge that the Appettant signed the Consent Order through its lawyers required a trial to verify whether the Appettant gave instructions to its lawyers to sign the Consenl Order on its behatf. Thirdiy, Counsel submitted that there was need for a triaI to verify the attegations of lraud and iltegatity affecting the sale of the suit property. Lastty, Counsel submitted that the trial Judge shoutd not have conctuded that the Appetlant approbated the sate and that it was estopped from bringing a fresh suit chattenging the same, without a trial and evatuation of evidence to verify whether the Appettant's actions amounted to approbation o 10 15 20 o

Counset submitted that whereas the issues in H. C. C. S No. 310 of 2008 and in H. C. C. S No. 2l of 2010, both arose from the same transaction between the Appetlant as mortgagor and the f irst Respondent as rnortgagee, the matters substantiatty in issue in the two cases were not the same.

of the impugned sate.

Counse[ submitted that it was not necessary for the Appettant to set aside the Consent 0rder. According to Counset, the Appettant had a right to seek 35

a separate remedy available under a different law. He relied on Mogan vs. 5 Ottoman Bank (1968) EA 156 and Magem Enterprises vs. Uganda Breweries Ltd, High Court Civil Suit No. 462 of 1991.

Counsel further submitted that Section 7 of the Civil Procedure Act does not apply to suits that have been settled by consent because in such suits, there is no trial or hearing by a competent court of the issues between the parties and a final determination of the parties' rights.

Counsel submitted that the second Respondent was not a party to H. C. C. S. No. 310 of 2008 and it did not exist in law at the time when H. C. C. S No. 310 of 2008 was filed since it was incorporated on 19/11/2009. He referred to Annexure AL7 at page 24 of volume 1 of the record of appeal. In the 15 circumstances, Counsel submitted that the plea of res judicata was not available to the second Respondent and it could not claim the plea of res judicata through the first Respondent when it did not exist at the time when H. C. C. S No. 310 of 2008 was filed. Further, Counsel reckoned that the trial court could not have dealt with the issue seeking to challenge the sale of 20 the suit property by the first Respondent to the second Respondent in H. C. C. S No. 310 of 2008 because the second Respondent was non-existent by that time and the suit property had not yet been sold.

The Appellant's Counsel concluded that if the trial Judge had properly directed himself on the law regarding the application of the plea of res 25 judicata and the facts, he would have come to the correct conclusion that the preliminary objection raised by the Respondents was not sufficient to dispose of H. C. C. S No. 21 of 2010 and that the suit should have been heard on its merits. Counsel prayed that the appeal is allowed and an order issues directing the High Court to hear and determine H. C. C. S No. 21 of 2010 on the 30 merits.

## First Respondent's submissions

In reply, the first Respondent's Counsel submitted that the Consent Order dated 17^th December 2009 and the Consent Decree dated 7^th January 2009. both arising from H. C. C. S No. 310 of 2008 between the Appellant and the

- ⁵ first Respondent, amounted to a recognition and adoption of the sate of the suit property by the first Respondent, as a mortgagee and bars the Appeltant from instituting H. C. C. S No. 2l of 2010 by reason ot res judicata, estoppel and the doctrine against approbating and reprobating. - Counsel submitted that whereas the two grounds ot appeal are limited to res judicata, H. C. C. S No.2l of 2010 was not dismissed on the ground of res judicata onty but atso on other grounds. These inctuded estoppels from chattenging the sate, and the doctrine against approbating and reprobating. Further the suit was barred under Section 34 of the Civit Procedure Act which bars a fresh suit arising from execution proceedings in a former suit. CounseI submitted that the consent order coutd on[y be set aside by an application in the previous suit, H. C. C. S No. 310 of 2008. Counset noted that the triat Judge deatt with att the four objections and uphetd them. ln the premises. CounseI submitted that even if the grounds of appeat on res judicata were allowed, the other three pretiminary objections upon which the suit was dismissed woutd stitl stand unchaltenged. 10 15 o 20

ln reply to the Appetlant's submission that the Consent Order and Decree were procured by fraud, ittegatity, misapprehension and ignorance of materiat facts, the {irst Respondent's Counsel submitted that the Appettant shoutd have filed an apptication arising out of H. C. C. S No. 310 of 2008 seeking to set aside the consent Order and Decree in accordance with Section 34 of the Civil Procedure Act, instead of fiting a separate suit. He submitted that untess and until the Consent Order is set aside by way of an apptication arising out of H. C. C. S No. 310 of 2008, it constitutes a vatid order of the High Court. Secondty, the Appettant did not ptead particutars of fraud by which the Consent Order was attegedty obtained. Counse[ pointed out that the particulars of fraud pleaded by the Appetlant in paragraph 5 of the ptaint in H. C. C. S No. 2l of 2010 retate to an entirety different matter being the atteged fraud touching the sale of the suit property. Thirdty, Counsel refuted the Appettant's contention that the parties did not sign the impugned 25 o 30

Consent Order because the Consent Order was signed by the Appettant's lawyer, Mr. Didas Nkurunziza, whose notice of instruction is exhibited at

page 265 of the record of appeal. The Appellant never pleaded that Mr. Didas $\mathsf{S}$ Nkurunziza did not have instructions to sign the Consent Order and therefore was the Appellant's duly recognised agent.

Counsel submitted that the Appellant was estopped from filing H. C. C. S No. 21 of 2010 having executed a Consent Order with the 1^st Respondent on 17^th December 2009 agreeing to the sale of the suit property and application of

the proceeds of the sale. He relied on Chitaley & Rao; The Code of Civil Procedure, 7^th Edition, Vol.1 at page 419 paragraph 114, where the learned authors state that a judgment by consent raises an estappel between the parties as much estoppel by judgment. A judgment by consent is intended

- to put a stop to litigation between the parties as much as a judgment of 15 Court after trial. Further, estoppel by a consent decree can arise only when the question raised in the subsequent suit was present to the minds of the parties and was actually dealt with by the Consent Decree. The test in such cases is whether the parties intended that the question at issue should be - settled between them by the consent decree and whether the consent 20 decree did actually settle that question. Counsel submitted that the correspondences between the Appellant and the first Respondent show that the parties had in mind the question of the sale of the suit property and that the rights of the respective parties and circumstances of sale of the suit property were known to both parties. The Appellant was barred by 25 - estoppels from filing H. C. C. S No. 21 of 2010 without first setting aside the consent Order and decree arising out of H. C. C. S No. 310 of 2008. Counsel for the first Respondent also submitted that the Appellant was - barred from filing H. C. C. S No. 21 of 2010 in view of the principle that a person shall not approbate and reprobate. He reckoned that the Appellant having 30 approbated the Consent Order and the sale of the suit property by receiving the sale proceeds cannot now reprobate by contesting the sale in a subsequent suit. Counsel relied on Halsbury's Law of England, 4^th Edition vol. 16(2) paragraph 962 where the learned authors state that a person. having taken advantage from an order, is precluded from saying that it is 35 invalid and applying to set it aside, or from setting up to the prejudice of

⁵ persons who have retied upon it a case inconsistent rvith that upon which it was founded. Further, a party who has accepted some benefit granted to him by deed cannot disregard the conditions on which the benefit was expressed in the deed to be conferred. Counsel further retied on Banque de Moscou v Kinderstey [1950] 2 ALLER 249 a|552 paragraph D to H where their Lordships hetd that a party in question is to be treated as having made an etection from which he cannot resile and that he wil.t not be regarded as having elected unless he has taken a benefit under or arising out of conduct which he first pursued and with which his present action is inconsistent. 10

ln conctusion, the first Respondent's Counsel submitted that the triat Judge was right to hotd as he did and to dismiss H. C. C. S No. 2l of 2010. Counsel prayed that this appea[ be dismissed with costs.

## Submissions of the second Respondent

The second Respondent's Counsel submitted that the [earned trial Judge did not err to find that H. C. C. S No. 2l of 2010 was res judicata. He submitted that under Section 7 of the Civil Procedure Act, the doctrine of res judicata applies to parties who clainr under the parties to a previous suit. There was a former suit, H. C-C. S No. 3'10 of 2008, between the Appettant and the first Respondent and the second Respondent ctaims under the first respondent. He retied on Mulla, The Code of Civit Procedure, I6th Edition (2002), at page 240-242, and 231 where the learned authors stated that res judicala not onty affects parties but their privies or persons ctaiming under them and each privy stands in the shoes of the party under whom he ctaims. The ground of privity is property and not personal relation, such that to make a person privy, he rnust have acquired an interest in the matter of action by inheritance, succession or purchase subsequent to the action. Further, in Lotta v Tanaki & others [20031 2 EA 555 the court hetd that the doctrine extends to coyer cornmon interest titigation where a person does not have to be fornrally enjoined in a suit, but he witt be deenrecj to ctainr under the person titigating on the basis of a common interest in the subject matter of the suit. On this basis, Counset submitted that H. C. C. S No. 21 of 2010 is res judicata not only because the second Respondent claims under the first 20 25 a 30

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Respondent, but also because the second Respondent, being the registered $\mathsf{S}$ proprietor and in possession of the suit property, has a common interest in the suit property, the subject matter of both suits.

Secondly, the second respondent's Counsel submitted that the subject matter of H. C. C. S No. 310 of 2008 is directly and substantially in issue in the subsequent suit, H. C. C. S No. 21 of 2010, because it is a dispute between the 10 Appellant and the first Respondent about the sale of the suit property. This issue was finally determined and disposed of by the consent of the Appellant and the first Respondent as evidenced by the Consent Decree dated 7^th January 2009 authorizing the sale of the suit property and a further

- Consent Order dated 17^th December 2009 recognizing the sale of the suit 15 property. This rendered the Appellant's subsequent suit res judicata as considered in Kamunye & others vs. the Pioneer General Assurance Society Ltd. [1971] EA 263 at 265, and Greenhalgh vs. Mallard [1947] 2 ALLER 255 at 257 where it was held that the test whether or not a suit is barred by res - judicata is whether the Plaintiff, in the subsequent suit, is trying to bring $20$ before the court, in another way and in the form of a new cause of action, a transaction which he already put before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon. If so, the plea of res judicata applies not only to points upon which the first court was actually required to adjudicate but to every point which properly belonged 25 to the subject of the litigation and which the parties exercising due diligence, might have brought forward at the time.

Thirdly, Counsel submitted that the Consent Decree in H. C. C. S No. 310 of 2008 resolved all issues regarding the Appellant's right of redemption and the sale of the suit property thereby leaving nothing to be judicially 30 determined. It was a final decision of court that gives rise to a plea of res judicata. Counsel relied on Palmer & another v Durnford (a firm) & another, [1992] 2 ALLER 122, where it was held that a consent can give rise to a plea of res judicata in subsequent proceedings since it is a final decision of the court in so far as it leaves nothing to be judicially determined. 35

Further, the Appellant adopted a sale of the suit property and benefited by s extinguishing its indebtedness to the first Respondent and receiving the batance from the sale proceeds and cannot approbate and reprobate. He relied on Evans vs. Barttam [193712 ALLER 646 a|652, and Banque des Marchands de Moscou (Koupetschesky) (ln Liquidation) vs. Kinderstey & another n9501 2 ALLER 549, where it was hetd that a man, having accepted 10 a benefit given by a judgment cannot a[tege the invatidity of the judgment which conferred the benefit. He further cited the case of Bhagwat Sharan (Dead THR. LRS) vs. Purushottam & others, Civit Appeat No.6875 of 2008, where the Suprerne Court of lndia hetd that where a party knowingty accepts the benefits of a contract or conveyance or an order, it is estopped 1s from denying the vatidity or the binding effect on hirn of such contract or conveyance or order.

O ln conctusion, the second Respondent's Counse[ submitted tha( each aspect of res judicala was established and therefore the Appettant's subsequent suit in H. C. C. S No. 2l of 2010 was barred by the doctrine of res judicata. 20 Counsel prayed that this court dismisses the appeaI with costs.

## Submission of the Appettant in rejoinder

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ln Rejoinder, the Appettant's Counset reiterated eartier submissions that the matters raised in H-C. C. S No. 21 o{ 2010 had not occurred when H. C. C. S No. 310 of 2008 was filed and determined. This imptied that the matters raised in H. C. C. S No. 310 of 2008 were never substantially in issue in H. C. C. S No. ²¹ of 2010. Counsel reiterated that whereas the previous suit, H. C. C. S No. 310 of 2008, was fited to forestat[ the sate of the suit property, the subsequent suit, H. C. C. S No. 2l of 2010, retates to the process and legatily of the sate of the suit property.

30 35 With regard to the first Respondent's submission that the Appettant did not raise grounds on the other pretiminary objections raised at the tria[ Court namely; that the Appel{ant cannot approbate and reprobate and that the Appettant was estopped, Counsel submitted that approbalion and estoppel are questions of both taw and fact which shoutd have been determined through a futt triat. He fautted the trial Judge for drawing a conctusion that the Appettant approbated the sate of the suit property and that it was

estopped from filing a subsequent suit. 5

Counsel reiterated his submission that the Consent Order and Decree were obtained through fraud and illegality and that the Appellant pleaded particulars of fraud. He prayed that the appeal is allowed.

## Resolution of the Appeal

- I have carefully considered the appellant's appeal, the submissions of $10$ Counsel and the law. As a first appeal from the decision of the High Count in the exercise of its original jurisdiction, we are required to reappraise the evidence by subjecting it to fresh scrutiny and arriving at our own conclusions bearing in mind the need for caution that we have neither seen nor heard the witnesses testify and should prefer the observations of the 15 trial judge in that respect (See rule 30 of the Rules of Court and Peters v Sunday Post Limited [1958] NEA 424). In Peters v Sunday Post Limited [1958] 1 EA 424, the East African Court of Appeal at page 429, held that the duty of a first appellate is: - ... to review the evidence in order to determine whether the conclusion originally 20 reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution: it is not enough that the appellate court might itself have come to a different conclusion...

In this appeal, what is in question is a point of law and facts are in the pleadings and facts which are presumed to be true as the suit was 25 dismissed preliminarily before evidence was adduced.

Grounds 1 and 2 of the appeal are intertwined and I will consider them together:

- 1. The learned trial Judge erred in fact and law when he held that the Appellant's Civil Suit No. 21 of 2010 was res judicata and dismissed it accordingly; and - 2. The learned trial Judge erred in fact and in law when he failed to properly evaluate the evidence on record in (with) regard to the pleaof res judicata and came to the wrong conclusion

- The grounds of appeal arise from the ruling of the High Court that the suit $\mathsf{S}$ of the appellant from which this appeal emanates is barred under Section 7 of the Civil Procedure Act, cap 71 laws of Uganda in that it is res judicata. The issue of whether a suit is *res judicata* can based on the pleadings or any agreed facts or facts not in controversy as a point of law. - In the circumstances I will consider the pleadings and any agreed facts 10 which required no proof. The plaint in Civil Suit Number 21 of 2010 was between the appellant Messrs Amamu Limited versus Barclays Bank of Uganda Ltd as first defendant and Messrs Stellar Properties Limited as the second defendant. It was for an order nullifying the purported sale by the bank as mortgagee of the plaintiff's property comprised in LRV 2610 folio 7 15 plot 5 George Street, Kampala, a building known as AMAMU House (hereinafter referred to as the suit property). The property had been sold to the 2^nd defendant. The suit was also to set aside a consent order in Civil Suit No. 310 of 2008 and for damages and costs. - The facts material to the issue of *res judicata* are that the plaintiff who is 20 now the appellant mortgaged the suit property to the 1^st respondent. The appellant upon default in payment of agreed instalments filed a suit against the first respondent who had threatened to realise its security for the loan and sell the mortgaged property. After filing High Court Civil Suit Number 310 of 2008, the appellant and the 1^st respondent executed a consent 25 judgment culminating from which a decree dated 7^th of January 2009 was extracted. In that consent decree, the parties agreed to a schedule in which the outstanding balances owed to the first respondent would be paid by the appellant and in default of payment, the 1^st respondent would be at liberty to realise and enforce the securities held by it. Following default of the 30 plaintiff/appellant to pay as decreed, the 1^st respondent advertised the suit property for auction on 16^th November 2009. Subsequently, the 1^st respondent accepted a bid for purchase of the suit property by one Steven Baligadde and a sale agreement was executed between the seller and the buyer. On 9^th of December 2009, the 1^st respondent handed over the 1^st up to the $6^{th}$ floors of the suit property to the $2^{nd}$ defendant and the $7^{th}$ up to the

9^th floors remained in possession of the appellant. The appellant undertook $\mathsf{S}$ to pay rent for such period as it would remain in possession.

Subsequently, Uganda Revenue Authority demanded for payment of value added tax on the sale of the swit property. The plaintiff averred that the sale of the suit property is null and void and was carried out by the respondents

- fraudulently and illegally. The particulars of fraud and illegality are set out. 10 In the suit, the appellant asserted that the respondents wrongfully deprived it of its equity of redemption and wrongfully deprived it of its proprietary rights to the suit property and it had suffered damage. It sought for an order declaring the sale of the suit property null and void and for it to be set aside. - The appellant also sought an order of cancellation of title to the suit 15 property in the names of the 2^nd respondent. The second respondent was registered on 25^th of November 2009. The appellant also sought an order to vacate the consent order requiring the plaintiff to vacate the suit property. Further for an order for the 2^nd respondent to hand over the 1^st applicant 6^th floors of the suit property to the appellant and general damages, interests 20 and costs of the suit.

The 1^st defendant in an elaborate written statement of defence averred that at the commencement of the suit it would object to the trial of the suit on the ground that it is res judicata. Secondly, on the ground that the consent order could only be challenged in the suit in which it was filed and that the law was that the suit was unsustainable because of the consent judgment which was binding on the parties.

As far as may be relevant the 1^st defendant who is now the 1^st respondent averred that the appellant had obtained a loan of US\$3,500,000 from the 1st respondent which was supposed to be paid in 6 equal yearly instalments of US\$538,333. The appellant defaulted in payment of the 1^st annual instalment on 30^th of September 2008 resulting in the appointment of a receiver. The appellant filed High Court Civil Suit No 310 of 2008 Amamu Ltd v Barclays Bank (U) Ltd to forestall the sale of the suit property. The suit was resolved by a consent judgment where the plaintiff undertook to pay the remaining 5 loan instalments and in the event of any default, the security for the loan

s woutd be realised. Subsequent to the consent iudg,ment, the ptaintiff/appetlant again defautted in ils obtigations thereunder and the property was sold by the first respondent. Particularty, the l't respondent averred that the ptaintitf/appeltant wrote a letter seeking for postponement of the sale so that a buyer they had identified to buy the suit property at the 10 sum of US\$5,500,000 would do so by 20th of November 2009. The sate was postponed but Messrs Africa House Ltd, the buyer identified by the ptaintiff, failed to honour its undertaking to make payment of US\$5,500,000 by 20th November, 2009. The property was subsequentty sotd for US\$5,400,000 to persons who had bid for the property. The appettant was advised about the ls sate of the suit property whereupon the appellant offered to rent the 7th, 8th and 9th ftoors of the suit property pursuant to an acceptable tenancy O agreement. There were negotiations between the parties which c,ulnrinated

ln a ruting dated 28'h May 2013, the learned trial judge considered whether zo the suit was res judicala upon hearing submissions about the same from Counset. The learned trial judge at pages 5 and 5 of his ruting held inter alia.

into a consent order dated lTth of December 2009.

The prayers an the pres€nt case among others, is for a dectaration that th€ sate of the suit pro,perty under a mortgage by the 1'r defendant to the 2d defendant be dectared null and void and lhat th€ consent order for vacant possession be set zs aside.

> It is the case of the defundants that the sale of the suit prop€rty that the ptaintiff wants court to dec[are nult and void was the subiect of a former suit where there was a consent order recognising the sale of the suit property to the 2d de{endant, and the ptaintiff accepted to vacate possession of the 7'h, I'h, and 9th floors o{ the suit property as part sf the settlement.

> It is clear to my mind that the consent order dated 17rh of December 2009 in H. C. C. S No 310 of 2008 did revotve around the same suit property as in this suit in as far as it recognised by the present plaintiff the sate of the suit property to the 2'd defendant. lt is also important po,int out that deductions were made from the proceeds of the purchase price and a percentage of them were given to the ptaintiff.

> Furthermore, the ptaintiff acknowle@es both the consent decree and consent order in its pleadings. Paragraph 4 (b) of the ptaintiff's ptaint ctearly shows that

> > r5

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a consent decree was entered between the parties for repayment of the $\mathsf{S}$ outstanding loan. Also, the said consent was clearly signed by the plaintiff's lawyers who in law are recognised agents of parties to the suit. Apart from submitting that the plaintiff never signed the decree and order, it never denied having given instructions to M/s Didas Nkurunzize & Co. Advocates to represent it in matters relating to H. C. C. S. No. 310 of 2008. 10

> The 1^st defendant also attached to its defence communications dated 8^th, 14^th and 15^th of December 2009 that clearly show that the plaintiff was in the know of the sale that is the subject of the consent order dated 17th of December 2009. These communications were not challenged by the plaintiff.

- ... It is a fact that the 1^st defendant and the plaintiff in this matter were the parties 15 to H. C. C. S No 310 of 200B. However, I find that by virtue of the consent order dated 17^th of December 2009, the 2^nd defendant is also privy to it. This particular case raises issues relating to the suit property only after the sale of the yet the earlier suit and/or consent order dealt with the sale itself. - ... I therefore find that the present suit raises issues and facts which were clearly 20 part of the previous suit and could have been raised in it but were not. I also agree with Counsel for 1st defendant that the plaintiff approbated the sale of the swit property to the 2^nd defendant and is therefore estopped from bringing a fresh suit challenging the same. - The learned trial judge sustained the preliminary objections and dismissed 25 the suit with costs. Pursuant to the ruling, the appellants filed a notice of appeal to this court and also obtained leave from the High Court to appeal from the rulings and orders in HCCS No 21 of 2010.

The issue of whether a suit is res judicata is a preliminary point of law pursuant to the rule under Section 7 of the Civil Procedure Act which 30 provides that:

## Res judicata.

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 claim, litigating under the same title, in a count 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.

⁵ Explanation I-The expression 'f ormer suit' shat[ denole a suit which has been decided prior to the suit in queslion whether or not it was instituted prior to it.

> Explanation Z.-For the purposes of this Section, the competence of a court sha[[ be determined irrespective of any provision as to right of appeat from the decision of that court.

Explanation 3.-The matter above referred to must in the former suit have been alteged by one party and either denied or admitted, expressty or imptiedly, by the other. 10

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Explanation 4.-Any matter which might and ought to have been made a ground of defence or attack in the former suit shatl be deemed to have been a matter directly and substantiatly in issue in that suit.

Explanalion 5.-Any retief ctaimed in a suit, which is not expressty granted by the decree, shall, for the purposes of this Section, be deemed to have been refused.

Explanalion 6.-Where persons litigate bona fide in respect of a public right or of a private right ctaimed in common for themsetves and others, at[ persons interested in that right shatt, for the purposes of this Section, be deemed to clairn under the persons so litigating.

Section 7 bars the triat of a suit v/here the "matter directty and substantiatty in issue has been directty and substantiatty in issue in a former suit between the same parties, or between parties under whom they or any of them ctaim, Iitigating under lhe same litle, in a court competent to try the subsequent suit or the suit in which lhe issue has been subsequentty raised, and has been heard and finatty decided by that court'. The question is whether in the suit from which the appeat arose, there was a matter that was directly and substantiatty in controversy in a former suit betwe€n the parties and their successors i,n titte? o

ln Semakuta v Magala & others [1979J HCB 90 it was hetd that in determining whether a suit is barred by res judical4 the test is whether the ptaintifl in the second suit is trying to bring before the court in another way in the form of a new cause of action a transaction which has atready been presented before a court of competent iurisdiction in eartier proceedings and which has been adjudicated upon. lf this is answered affirmatively, the plea of res judicata wilt then not onty apply to at[ issues upon which the first court was

called upon to adjudicate but also to the very issue which properly belonged $\mathsf{S}$ to the subject of litigation and which might have been raised at the time. through the exercise of due diligence by the parties. Further in Kamunye and Others v the Pioneer General Assurance Society Ltd, [1971] E. A. 263, the Court of Appeal per LAW, Ag. V.-P. at page 265 considered how to determine whether a suit is *res judicata* and held that: 10

The test whether or not a suit is barred by res judicata seems to me to be - is the plaintiff in the second suit trying to bring before the court, in another way and in the form of a new cause of action, a transaction which he has already put before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon. If so, the plea of res judicata applies not only to points upon which the first court was actually required to adjudicate but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time Greenhalgh v. Mallard, [1947] 2 ALL E. R. 255. The subject matter in the subsequent suit must be covered by the previous suit, for res judicata to apply Jadva Karsan v. Harnam Singh Bhogul (1953), 20 E. A. C. A. 74

The question for consideration in this appeal and which will dispose of the appeal is whether the appellant was trying to bring before the High Court. in another way and in the form of a new cause of action, a transaction which he has already put before a court of competent jurisdiction in earlier 25 proceedings and which has been adjudicated upon. The answer to this question firstly depends on whether the facts on which its determination depends is in pleadings or agreed facts or both. In Ismail Serugo v Kampala City Council & Attorney General; Constitutional Appeal No. 2 of 1998 Mulenga JSC held that an objection to a plaint on the ground that it discloses no 30 cause of action under Order 7 rule 11 of the Civil Procedure Rules is distinguishable from an objection on a point of law on the ground that the suit is not maintainable (See Nurdin Ali Dewji & others v G. M. M Meghji & Co. and Others (1953) 20 EACA 132). What are the facts from which the issue of res judicata can be determined? 35

What is ordinarily in controversy in a former suit ought to be considered firstly on the basis of the pleadings in the former suit because issues arise

⁵ ^from pteadings as stipulaled by inter afb Order I5 rules 1 (l) - (3) of the Civit Procedure Rules which provide that:

1. Framing of issues.

(l) lssues arise when a materiaI proposition of [aw or fact is affirmed by one party and denied by the other.

(2) Materiat propositions are those propositions of law or fact which a ptaintiff must allege in order to shcw a right to sue or a defendant must attege in order to constitute a defence.

(3) Each materiaI proposition affirmed by one party and denied by the other shatl form the subject of a distinct issue.

Further, Order '15 rute 3 of the Civit Procedure Rutes provides for the materiats from which issues may be framed as: 15 a

3. Materiats from which issues may be framed.

The court may frame the issues from al[ or any of the fottowing materiats-

(a) attegations made on oath by the parties, or by any persons present on their behatf, or made by the advocates of the parties;

(b) attegations made in the pteadings or in answers to interrogatories detivered in the suit; and

(c) the contents of documents produced by either party.

Without going into the facts, High Court Civit Suit No 310 of 2008 between the appellant and the l'r resporrdent concerned a claim for breach of contract and enforcement of the appettants right in equity to redeem the ptaintiffs mortgaged property known as LRV 2510 Fotio ? Ptot 5, George Street Kampala and for a permanent iniunction to restrain the defendant (the I't respondent) from disposing of or interfering with the mortgaged property or in the atlernatiye for an order for specific performance of the loan agreement by both parties. What is ctear from the ptaint is that there was a loan agreement between the parties and the suit property had been mortgaged to the Id respondent. The l't appettant averred inter alia that by letter dated 28rh of October 2008 and 31 0ctober 2008, the l"tdefendant communicated to il thal untess the first principal plus interest totatl.ing to a

- US\$907,990.94 was paid within 14 days, the bank would recall the entire $\mathsf{S}$ debt and realise its securities. Further in paragraph 5, the plaintiff sought to enforce its right in equity to redeem its mortgaged property. Among the remedies sought was judgment for the equity of redemption of the suit property, damages for breach of contract, costs of the suit and interest. In the alternative the plaintiff sought specific performance of the loan terms $10$ between the parties and any other relief that the court may deem fit to grant. - The suit was filed on 25^th of November 2008. In reply the 1^st respondent formerly known as Barclays bank of Uganda limited (now Absa Uganda limited) in its written statement of defence averred that the plaintiff/the appellant had breached the terms of the loan 15 agreement by failing to pay the loan instalment that fell due on 28th of September 2008 and extended to 31^st October 2008 for the sum claimed in

the demand notice referred to above. The defendant further averred that the

- appellant in a letter dated 15th of November 2008 made an undertaking to settle the arrears by 19^th November 2008 upon remittance of rental income 20 from the Ministry of Justice of Uganda shillings 2,400,000,000/=. It was further averred that the appellant was paid as stipulated by the Ministry of Justice but only opted to pay to the 1^st respondent US\$400,000 leaving an outstanding sum of US\$507,990. On that basis the 1^st respondent asserted - that the plaintiff/the appellant in this appeal was not entitled to an order of 25 specific performance of an agreement which it has breached and continued to breach. It also averred that the plaintiff was at liberty to exercise its equity of redemption on payment of the debt owing but in any event prior to the sale of the security. The first respondent sought for dismissal of the suit. - There is a consent decree on the record of appeal based on agreement of 30 the parties recorded by court.

Apparently the settlement of the suit by consent of the parties is not in issue. By consent decree issued by the registrar dated 7^th January 2009 it is indicated that on 17^th December 2008, His Worship Henry Haduli in the presence of Paul Byaruhanga and Peter Mugimba, joint Counsel for the plaintiff and T. Masembe Kanyerezi Counsel for the defendant by consent of

- ⁵ the parties agreed that it be decreed and ordered as foltows - 1. The Ptaintiff to pay the balance outstanding and on its account with the defendant by close of business on 7 January 2009 - 2. if the payment in ctause (1) above is made by the state 7'h of January 2009, then 10 the defendant shatl permit the ptaintiff to continue to service the remainder of the loan in the manner agreed in the loan facitity tetter,/ag reeme nt. - 3. Shoutd defautt be made in payment of the sums due under clause (1) or in payment of the subsequent instatrn€nts due under the loan facitity tetter/agreement, then the defendant shat[ be at liberty reatise and enf0rce the securities hetd by it. - 15 4. The ptaintiff shatl pay the defendant costs of the suit. ...'

It is clearly averred that the ptaintiff who is now the appettant had defautted O but what is critical is that the ptaintiff in civit suit number 2l of 2010 which is the subsequent suit against the respondents attached Annexure "Al' which is another consent order for detivery o{ vacant possession which ^I 20 shatl quote in futt whose terms are as f oltows:

ORDE{T OF DELIVERY OF VA. CANT POSSESSION BY CONSENT.

W-'IEREAS by decree hearing dated 7 January 2007 the ptaintiff and defendant consented to a payrnent schedule in relation to the ptaintiff's indebtedness to the deferdant and for recourse by the defendant to the security held comprised in LRV 2610 Fotio 7 Ptot 5 George Street in the evenl of defautt in payment.

And whereas the ptaintiff defaulted in payment resutting in the said security being realised and sotd to Stellar Properties Limited for the price of US\$5,400,000 which was duty paid and deductions were made by the defendant therefrom as liSted in the defendant's letter to the ptaintiff of 8 December 2009 which dedudions inctuded tlre prepaid the rentals were received from government and NSSF as t€n;nts in the property, property rate arrears, VAT arrears, lawyers, auctioneers and valuers fees and the Daity l,{onitor Newspaper advertising charges, the above deductions titing U5\$2.005,984-

And whereas US\$3,256,582 was paid therefrom in setttement of the loan sum, US\$10,476 was deducted as provision for ground rent and US\$16,628 was deducted as an agreed rental for the 7th, 8th, and ?th ftoors for the month of December 2009 teaving a batance of US\$I09,135 to the pdaintiff's credit.

Arrd whereas the defendant peaceably handcd over possession to the said

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purchaser of the 1st, 2nd, 3rd, 4th, 5th and 6th floors but is yet to hand over possession of the $7^{th}$ , $8^{th}$ , and $9^{th}$ floors.

Now it is hereby agreed as follows;

- $(i)$ The plaintiff shall hand over possession of the 7^th, 8^th, and 9^th floors to the alloresaid purchaser on or by 31 December 2009 and should position not be handed over by that date the defendant shall be at liberty to evict the plaintiff therefrom. - $(ii)$ The defendant shall pay to the plaintiff 60% of the balance held as due being US\$65,481 upon execution hereof and shall pay the remaining balance of US\$43,654 upon the handover of position of the 7th, 8th, and 9^th floors as aforementioned. - This consent order shall be enforceable and executable as a court $(iii)$ order in this suit.

Dated at Kampala the 17^th day of December 2009.

The contents of the consent decree and consent order as well as the facts averred in the plaint are assumed to be true. The consent was executed by 20 Counsel for the plaintiff and defendants and issued under the seal of the court on 17^th December, 2009.

The consent order was also filed in High Court Civil Suit No 310 of 2008; Amamu Ltd vs Barclays Bank of Uganda Ltd.

In Civil Suit Number 21 of 2010, paragraph 3 of the plaint avers that: 25

> The Plaintiff brings the suit for an order nullifying the purported sale by the 1st defendant, as mortgagee of the plaintiff's property comprised in LRV 2610 Folio 7 Plot 5 George Street Kampala, known as AMAMU HOUSE, (hereinafter referred to as "the suit Property" to the 2^nd Defendant, setting aside the consent order, damages and costs.

Clearly the action of the appellant was one seeking to nullify the sale by the 1^st defendant of the suit property. Secondly, it is clear from the orders sought in paragraph 8 of the plaint that the plaintiff/the appellant to this appeal sought a declaration that the sale and transfer of the suit property by the 1^st defendant to the 2^nd defendant is null and void. Thirdly, for an order that the transfer of the suit property into the names of the 2^nd defendant registered

$10$

$\mathsf{S}$

⁵ on 25th November, 2009 under lnstrument No 421382 be cancelted and proprietorship of the suit property reverted to the ptaintiff's names. Fourthty, it is an order that the consent order requiring the ptaintiff to vacate the suit propeny be set aside. Fifthty, it is for an order that the 2"d defendant to hand over the lst to 6th ltoors of the suit property to the ptaintiff. Sixthty, it is for an order for payment of general damages. And tastty it is for orders for payment of interest, costs and any other retief. 10

The first point to be made is that a consent order is a judgment of the court though issued by agreement of the parties on agreed terms. lt is therefore an agreement of the parties. lt is a valid order or decree as the case may be untess set aside. Secondly, it may be set aside on grounds that woutd vitiate a contract between parties. ln Brooke Bond O Ltd vs. Mattya [9751 EA 266 it was hetd that, any order made in the presence and with the consent of Counsel is binding on att parties to the proceedings or action, and on those ctaiming under them and cannot be discharged except on grounds that woutd vitiate a contract.

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Prima facie, the consent decree was entered by the Registrar in the presence of the Counset of the parties and is binding on the parties.

Further a consent decree or order is binding on the parties and operates as estoppel by contract as held by Lindtey LJ in Huddersfietd Banking Company Ltd v Henry Lister and Sons Ltd (1895) 2 CH D. P. 273 at 280:

A consent order I agree is an order and so tong as it stands it must be treated as such, and so long as it stands it is as good an estcppel as any other order. I have not the stightest doubt thst a consent order can be impeached, not only on the ground of fraud, but upon any gror,rnd that would invatidate it.

- Secondty, the question is whether the issue of sate of the suit property was in issue in the former suit. Ctearty, it was in issue in that by consent decree recorded by the court on l7s December 2008 it was agreed that the ptaintiff woutd pay the outstanding batance by ctose of business on 7'h of January 2009. Further it was agreed {hat if there was a defautt by the ptaintiff, then 30 - the defendant would be at tiberty to realise and enforce the securities hetd by it. lt was further agreed that the ptaintiff woutd pay the defendant's costs 35

of the suit. The suit was resolved by consent of the parties and even the $\mathsf{S}$ payment of costs was agreed. Subsequently, there was a default in payment which was a violation of the decree. The parties resolved the issue by consent of the parties. That is the consent that was challenged in Civil Suit No 21 of 2010. The consent is dated 17^th of December 2009 and acknowledges certain facts. The first fact acknowledged is that by decree dated 7th of 10 January 2009 (of course entered on 17 December) the plaintiff consented to a payment schedule of the mortgage charged on the suit property. It is further acknowledged that the plaintiff defaulted and the property was sold to the $2^{\rm nd}$ respondent for US\$5,400,000. It is further acknowledged in the consent order for vacant possession that following the sale, the loan sum 15 was settled and some balance remained over and part of which was used to pay ground rent for the 7^th, 8^th, and 9^th floors for the month of December 2009 and a balance of US\$109,135 was left to the credit of the plaintiff/the appellant to this appeal. It was agreed that the defendant would hand over possession to the purchaser of the $1^{st},\,2^{nd},\,3^{rd},\,4^{th},\,5^{th}$ and $6^{th}$ floors and was 20 yet to hand over possession of the $7^th$ , $8^th$ , and $9^th$ floors to the purchaser. Upon acknowledging these facts in the consent order, it was agreed that the plaintiff would hand over possession of the 7^th, 8^th, and 9^th floors to the purchaser by 31^st December 2009 failure for which the defendant would be at liberty to evict the plaintiff/the appellant this appeal. Further, it was 25 agreed that the defendant would pay to the plaintiff 60% of the balance held as due amounting to US\$45,481 and would hand over the balance of US\$43,654 upon the plaintiff handing over possession of the 7^th, 8^th, and 9^th

floors of the suit property. It was also agreed that the consent order would be enforceable and executable as a court order in the suit. The suit is Civil 30 Suit No. 310 of 2008

The issues relating to the equity of redemption, the sale of the suit property and the vacant possession of the suit property were finally determined. The consent order for vacant possession was an execution of the decree by consent of the parties. Without setting aside the decree recorded by consent 35 of the parties, the consent order for vacant possession which acknowledged enforcement of the decree was a matter arising in execution

$\mathfrak{P} \mathcal{L}$

⁵ of the decree which coutd onty be determined in High Court Civit Suit No 310 of 2008. This is ctearty stiputated by Section 34 of the Civil Procedure Act which provides that:

34. Questions lo be determined by the court executing the decree.

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(l) Att questions arising between the parties to ttre suit in which the decree was passed, or their representatives, and relating to the execution, discharge, or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.

(2) The court may, subject to any obiection as lo limitation or jurisdiction, treat ^a proceeding u nder this Section as a suit, or a suit as a proceeding, and may, if ftecessary, order payment of any additional court {ees.

(3) lffiere a question arises as to whether any person is or is nol the representative of a party, that question sha{t, lor the purposes of this Section, be deterrnhed by the court.

Exptanalion.-For the purposes of this Section. a plaintiff whose suit has been dismissed, and a defendant against whom a suit has been dismissed, are parties to the sui{.

There was a decree issued by the High Cotrrt by consent of the parties which is nol even fltle subject matt€r of Civit Suit No 2tr of 20'10 in terms of a suit to set it aside. In paragraphs 4 (b), (c) and (f) of the ptaint, the appettant ctearly averred as fs'tlows:

- Subsequent to surtr mortgage issues arose between the plain(iff and the l'' defendant and by a consent judgment/decree of 7'h of January 2009 in ftCDS No 310 oa 2008, the ptaintiff and lfre 1" defendant agreed on ^a schedute by wftidh lhe balance of the advances then outstanding woutd be paid and thal in defautt of payment by that schedule the ln defendant wou[d be at liberty to reatise and enforce the securities hetd by it. b - ltle ptainlift was unab{e to meet the said payrnent schedule and on October fiUth.2009 the ld defendant caused tf,re suit propeflr\*'to be advertised for auction on l6rh Novernber 2009. (...) c - On or about 9ih December 2009 the l'! defendant. in possession, handed oven- tfie lrr to 6'n' l{oors of the suit property to the 2^'defendant white the ?'h and 9'h floors rernained in possession of the ptaintiff which, in (f)

misapprehension and/or ignorance of material facts, undertook on pain of immediate eviction to pay rent for such period as it would remain in such possession (see copy of the consent order executed by the plaintiff to prevent such immediate eviction annexed hereto as "AL5").

In paragraph 5 of the plaint, the plaintiff goes on to challenge the sale of the suit property and alleges inter alia fraud and illegalities. 10

Under Section 34 of the Civil Procedure Act (the CPA), the enforcement of the decree arose out of a default of a clause of the consent judgment and therefore was a matter arising out of execution. A separate suit on such a matter arising from execution of a decree is barred under Section 34 (1) of

the CPA. Even if the issue of *res judicata* was not handled by the High Court. 15 the fresh suit the appellant filed as Civil Suit No 21 of 2010 arose from execution of the decree in Divil Suit No 310 of 2008 and is barred by statute.

Secondly, the suit challenges the order for vacant possession on terms agreed by the parties in Civil Suit No 310 of 2008. To the extent that it seeks 20 nullification of a transfer by execution of a decree in Civil Suit No 310 of 2008, the matter is barred by the doctrine of res judicata under Section 7 of the Civil Procedure Act. In the relation to the consent orders, the learned trial judge rightly held that the matter ought to have been filed in the Civil Suit No 310 of 2008. This is consistent with the provisions of Section 34 (1) of the CPA which bars a mesh suit on a matter arising from execution of a decree

The issue of the appellant's equity of redemption and the issue of the sale and transfer of the suit property were issues in Civil Suit No 310 of 2008 and are barred by res judicata. The plaintiff had, in the previous suit, sought for a declaration and orders which are the same matters being sought in the 30 suit from which the appeal arose (H. C. C. S No. 21 of 2010). The plaintiff had sought for a declaration that it exercises its equity of redemption, to redeem the suit property from the mortgage by paying the outstanding loan amounts. Secondly, in the previous suit the plaintiff sought for an order to stop the sale of the suit property upon default in payment of its scheduled commitment to service the mortgage. The matter was resolved by consent

$5$

- ⁵ and the ptaintiff again defautted whereupon the parties sought to enforce the decree and agreed to do so by consent. The consent was an order of the court and coutd onty be set aside as a matter arisinE in execution because a fresh suit it is barred by res judicala. Having hetd as I have above, there is no need to consider the issue of estoppels and the assertion that the appellant coutd not approbate and reprobate having taken the benefit of the consent decree and orders of the High court. what is crucia[ in this appeat is that the sote issue based on two grounds of appeat of whether the [earned triat judge erred to find that the action was res judicata. 10 - I woutd find that the tearned triat judge did not err in taw or fact to find that the suit was barred by res judicata. ln any case, in the circumstances, ^a fresh suit was barred by Section 34 (l) of the Civit procedure A,ct and the grounds of appeat could not on their own [ead to rerrersal of the decision of the learned triat judge even if they were altowed. Further, there was no need to try matters of fact first before determining the pretiminary points of law as the facts on which the decision was grounded are part of the plaintiff's pl.eadings and the consent judgment and orders entered by court of which judiciat notice can be taken and which need lrot be proved. o 15 20

ln the prernises, I woutd find {hat grounds I and ² merit. Further, the appe[tant's appeat has n,o merit as dismissed the suit on other grounds as wel[ apart fro make an order that the appellant's appeat is dismiss of the appeal have no the learned trial judge m res judicata. I would ed with costs.

I

Dated at Kampata tfre 2IS4- day of \ + 2021

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Christopher Madrama

Justice sf Appeat 30

#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIL APPEAL NO. 189 OF 2013

#### (ARISING FROM CIVIL SUIT NO.21 OF 2010)

...................................... AMAMU LIMITED::::::::::::::::

VERSUS

1. BARCLAYS BANK OF UGANDA LTD

2. STELLAR PROPERTIES LIMITED::::::::::::::::::::::::::::::::::::

### CORAM: HON. MR. JUSTICE KENNETH KAKURU, JA HON. MR. JUSTICE CHRISTOPHER MADRAMA, JA HON. MR. JUSTICE MUZAMIRU MUTANGULA KIBEEDI, JA

## JUDGMENT OF MUZAMIRU MUTANGULA KIBEEDI, JA.

I have had the benefit of reading in draft the judgment of my learned brother, Hon. Mr. Justice Christopher Madrama, JA and I concur with his findings, conclusions and the orders he has proposed.

Dated at Kampala, this....................................

MUZAMIRU MUTANGULA KIBEEDI

JUSTICE OF APPEAL

#### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIL APPEAL NO. 189 OF 2010 2013

...................................... AMAMU LIMITED ....................................

#### **VERSUS**

## 1. BARCLAYS BANK OF UGANDA LTD 2. STELLAR PROPERTIES LIMITED ....................................

(Appeal from the ruling of the High Court of Uganda at Kampala, (Commercial Division) before Hon. Mr. Geoffrey Kiryabwire dated 28^th May, 2013 in Civil Suit No. 21 of 2010)

Hon. Mr. Justice Kenneth Kakuru, JA CORAM: Hon. Mr. Justice Christopher Madrama, JA Hon. Mr. Justice Muzamiru Mutangula Kibeedi, JA

# JUDGMENT OF HON. JUSTICE KENNETH KAKURU, JA

I have had the benefit of reading in draft the Judgment of my learned brother Hon. Justice Madrama JA. I agree with him that this appeal ought to be dismissed for the reasons he has ably set out in his Judgment.

The appellant did not only consent to the settlement of the suit but also fully admitted liability when it sought the consent decree. The consent decree was executed in exercise of the appellant's equitable right of redemption.

This appeal has no merit and is hereby dismissed with costs.

We so order.

Dated at Kampala this. $21$ of $21$ of 2021.

Kenneth Kakuru **IUSTICE OF APPEAL**

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