[2008] UGCA 31

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

$CORAM:$ USTICE A. E. N. MPAGI-BAHIGEINE, J.4. OF UGAND O. BOX 7085, KAMPALAH JUSTICE A. TWINOMUJUNI, JA. HIGH COURT AND DIVISION. HON. YUSTICE C. K. BYAMUGISHA, J. A.

共 APR 2009 IVIL APPEAL NO.67/04 **BETWEEN EXAMPLE 1999 EXAMPLE 1999** $15$ AND

POPE JOHN PAUL IV SOCIAL CLUB LTD:::::::::::::::::::::RESPONDENT

[Appeal against the ruling and orders of the High Court of Uganda sitting at Kampala High Court Circuit (Katutsi J) dated 28th May 2004 in High Court $20$ Civil Suit No.420/20031

## JUDGMENT OF BYAMUGISHA, JA.

This is an appeal against the orders of the High Court wherein the appellant's $25$ suit was dismissed with costs.

The background to this appeal has a checkered history.

On 4^th December 2001 the appellant filed HCCS No. 1010/01 against the

respondent claiming recovery of land comprised in Kibuga Block 16 Plot 14

situated at Rubaga, Kampala District. He claimed that the transfer of the land 30 into the names of the respondent on 26^th May 1983 was tainted with fraud. The reason for the alleged fraud was that at the time of the transfer, the registered owner one Erisa Semakula Makona Magoba was already dead - having passed away on 10^th January 1979. The appellant is the holder of letters of


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administration to the estate of the late having obtained the same from the High Court of Uganda on 8^th October 2001. By a will dated 2^nd April 1967 the deceased bequeathed the suit property to 8 of his children. It would appear that no letters of administration or probate was granted to any

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limitation.

one to administer the estate of the deceased. The certificate of title remained in the names of the deceased until the respondent became the registered proprietor.

The respondent filed a written statement of defence in which it denied the allegations of fraud. It claimed that it was a bonafide purchaser for value without any notice of fraud. It averred that it purchased the suit land from someone who called himself Erisa Semakula Makona Magoba for a consideration of Shs 300,000/ $=$ . The respondent averred in paragraph 5 that it took possession of the land immediately after purchase and has been in possession since. In paragraph 6 of the WSD it was averred that the suit against the respondent was time-barred and ought to be dismissed with costs. The appellant did not reply to this averment to show exemption from the law of

When the suit came before Okumu-Wengi J. for a scheduling conference, counsel for the respondent raised a preliminary objection. He contended that the suit was barred by limitation having been filed more than 12 years after discovery of the alleged fraud.

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Counsel for the appellant in her submission argued that the issue of when the appellant can be taken to have known of the fraud is a matter of evidence. She contended that it was premature to consider that the plaint was time barred. The learned judge upheld the preliminary objection and dismissed the suit with no order as to costs. The plaint should have been rejected rather than dismissed under *Order 7 rule 11* of the Civil Procedure Rules.

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On 8^th July 2003 the appellant filed HCCS No 420/03 in which he again alleged fraudulent transfer of the suit land. He pleaded exemption from the law of limitation in paragraph $4(c)$ , (d) and (e) of the plaint.

The respondent filed a written statement of defence in which it averred in paragraph 3 thereof that the suit was *res judicata* as it is between the same parties and is based on the same facts and issues as in HCCS No.1010/2001. It further averred in paragraph 4 that the appellant filed a Notice of Appeal on 14^th May 2003 against the decision of Okumu-Wengi and that the notice has not been withdrawn.

On 20^th May 2004 the suit came before Katutsi J. presumably for hearing. Mr Katabarwa, learned counsel for the respondent, raised a preliminary objection in that the earlier suit was dismissed for being time-barred. He was referring to paragraph 3 of the written statement of defence which had alleged that the subsequent suit was *res judicata*.

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In reply, Mr Omongole, learned counsel for the appellant, submitted that whereas it was true the earlier suit was dismissed on a preliminary objection on the issue of limitation that did not constitute *re judicata*. He cited a number of authorities to support his case.

He also informed court that the notice of appeal was withdrawn on $16^{th}$ September 2003. In his ruling the learned judge upheld the preliminary objection with costs –hence the instant appeal.

The memorandum of appeal filed on his behalf contains two grounds namely:

- 1. The learned trial judge erred in both law and fact when he held that the suit was *res judicata* for having been dismissed on a preliminary objection in suit No.1010/2001. - 2. The learned trial judge erred in law and in fact when he held that the plaintiff pays costs of the preliminary objection.

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The appellant is seeking the following orders;

a) The appeal be allowed.

b) The respondent pay costs of the appeal and the court below.

c) The judgment/ruling of the High Court be set aside.

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When the appeal came before us for final disposal. Mr Omongole, learned counsel for the appellant, informed us that both parties had agreed on one issue*res judicata.*

In his submission he stated that the judge erred in law in finding that the suit was *res judicata* as civil suit No. 1010/01 was not adjudicated upon and determined substantially. He referred to section 7 of the Civil Procedure Act which is to the effect that for a matter to be *res judicata* the issue therein must have been directly and substantially adjudicated upon between the same parties. The second import of the section, counsel submitted is that the issue in the

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former suit must have been raised, heard and decided upon by a competent $10$ court. He pointed out that in civil suit No.420/03 and in the former suit the issue of fraud was not substantially adjudicated upon as the suit was dismissed on a preliminary point of law.

On the issue of limitation counsel submitted that it was raised in the former suit and counsel for the appellant answered that the issue could not be determined 15 without hearing evidence. He stated that there was no trial. Learned counsel cited the following authorities in support of his arguments:

Isaac Bob Busulwa v Ibrahim Kakinda [1979]HCB 90 where the court held that a 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.

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Nakiridde v Hotel International Ltd [1987] HCB 86 where the court held that for *res judicata* to apply, the matter ought to have been heard and determined and where the merits of the matter was not heard and determined, the doctrine does not apply.

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*Semakula v Magara & others [1979]HCB91* which laid down the test to be followed in determining whether or not a suit is barred by *res judicata*. Learned counsel asserted that the dismissal of HCCS No.1010/01 on a preliminary objection did not render a subsequent suit based on the same facts and parties *res judicata*. He invited us to answer the issue in the affirmative.

In reply Mr Balikudembe, learned counsel for the respondent, submitted that he is relying on the legal arguments he filed in court on 4^th November 2005. He referred to paragraph 4(b) of Civil Suit No.1010/01 in which the appellant alleged loss of certificate of title and the respondent having become registered proprietor on $26^{\text{th}}$ May 1983.

In paragraph 5, counsel submitted, the appellant alleged fraudulent transfer but no mention was made of disability or when the he discovered the alleged fraud. Learned counsel went on to state that in paragraph 6 of the written statement of defence the respondent raised the issue of limitation and there was no reply. He submitted that a diligent litigant would have filed a reply and pleaded exemption from the law of limitation.

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Learned counsel referred to section 7 of the Civil Procedure Act and claimed that there was constructive *res judicata*. He did not elaborate. He commented on the case of Busulwa (supra) and said that the dispute was not referred to arbitration but this did not extinguish the claim. He claimed that in the instant appeal, the issue of limitation extinguished the claim.

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He supported the trial judge for dismissing the suit and he invited us to dismiss the appeal with costs.

The provisions of section 7 of the Civil Procedure Act which govern the rule on *res judicata* states as follows:

"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 court of competent jurisdiction to try the subsequent suit or suit in which the issue has been subsequently raised, and has been heard and finally decided by that court".

The operative words in the section are "heard and finally determined by that court". The provisions of the section are therefore the embodiment of the rule of conclusiveness of judgments with regard to the points that the court decided. The section prevents a fresh suit between the same parties for the same relief. $\Box$ I agree with the submission of counsel for the appellant and the authority he cited Semakula v Magala & others (supra) that laid down the test to be followed when determining whether or not a suit is barred by *res judicata*.

$45$ The test is this: is the plaintiff in the subsequent suit or action trying to bring before the court, in another way and in the form of a new cause of action, a matter which he has already put before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon?

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If the answer is in the affirmative, the plea of *res judicata* applies not only to $\mathsf{S}$ points upon which the first court was required to adjudicate but to every point which properly belonged to the subject matter of litigation and which the parties or their privies exercising reasonable diligence might have put forward at the time. See *Greenhalgh v Mallard* [1947]2 All ER 255

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In the matter now before us, there is no dispute that the appellant's suit was not heard and finally determined by a court of competent jurisdiction. Okumu-. Wengi J. dismissed it for being barred by the Limitation Act. Katutsi J in his ruling upholding the objections of counsel for the respondent in the subsequent suit said:

"As stated above, it is admitted the cause of action in this and the former suit are one and the same, it is therefore clear that the main matter in issue in this suit i.e that the defendant fraudulently transferred the suit premises to its name was not heard and finally decided in that suit. The only matter in that suit which was in my opinion heard and finally decided was that the suit brought as it was after twelve years was barred by the Limitation Act.

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The present suit comes to court by way of amendment in that disability which was not raised in the former suit is now pleaded. Is not the issue of limitation surely res judicata? Is the plaintiff right to have it resurrected?

The learned judge then quoted extracts from English decisions and concluded thus:

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In this case it was open to the plaintiff to plead disability in the former suit. He did not. He cannot be allowed to re-open it here. Iam of the humble view that the preliminary objection on a point of law raised succeeds and I hold $SO.$ "

Both learned judges of the High Court in dismissing the appellant's suit did not cite any law under which it was done. As I stated earlier the plaint should have been rejected. The dismissal of a suit is different from rejection of a plaint. Dismissal of suits is governed by different rules of procedure.

The rejection of plaints is governed by the provisions of *Order 7 rule 11* of the 15 Civil Procedure Rules. The rule provides as follows:

The plaint shall be rejected in the following cases-

- *a) Where it does not disclose a cause of action;* - b) Where the relief claimed is undervalued and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court fails to do so:

- c) Where the relief claimed is properly valued but insufficient fee has been paid, and the plaintiff on being required by the court to pay the *requisite fee within a time to be fixed by the court, fails to do;* - d) Where the suit appears from the statement in the plaint to be barred by any law; - e) Where the suit is shown by the plaint to be frivolous or vexatious."

*Rule 13* of the same order states thus:

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"The rejection of the plaint on any of the grounds hereinbefore mentioned" 10 shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action". (Emphasis added).

The provision of this rule is very clear. The appellant's plaint was rejected for being barred by the Limitation Act. The provision of this rule allowed him to present a fresh plaint which he did and pleaded disability. This means as I 15 understand it that the rule of *res judicata* is inapplicable to a plaint which is rejected for being barred by any law. The appellant was within his right to present a fresh plaint in my humble view. The cause of action and the reliefs he is seeking remained the same. The learned judge was, with respect, wrong when he held that the appellant was barred from resurrecting the issue of limitation.

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In the result I would allow the appeal with costs to the appellant both here and in the court below. The file would be remitted to the High Court to do theneedful.

Dated at Kampala this... $\stackrel{\leftarrow}{2}$ S....day of... $\stackrel{\leftarrow}{7}$ S.....2008.

C. K. Byamugisha **Justice of Appeal**

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

# CORAM: HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE C. K. BYAMUGISHA, JA

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#### CIVIL APPEAL NO. 67/2004

# JOHN SEMAKULA :::::::::::::::::::::::::::::::::::: **VERSUS**

### POPE JOHN IV SOCIAL CLUB LTD ::::::: RESPONDENT

(Appeal against the ruling and orders of the High Court of Uganda sitting at Kampala High Court Circuit (Katutsi J) dated 28^th May 2004 in High Court Civil Suit No. $420/2003$ )

## JUDGEMENT OF HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA

I have perused in draft the judgement of C. K. Byamugisha JA. It is so exhaustive that I do not have anything useful to add. I agree that the appeal should succeed.

Since Twinomujuni JA also agrees, the appeal succeeds with the orders proposed by Byamugisha JA.

Dated at Kampala this $\frac{25}{2}$ day of $\frac{1}{2}$ day.

HON. A. E. N. MPAGI-BAHIGEINE JUSTICE OF APPEAL


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### THE REPUBLIC OF UGANDA

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

# CORAM: HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE C. K. BYAMUGISHA, JA

#### CIVIL APPEAL NO.67/2004

JOHN SEMAKULA...................................

## VERSUS

#### POPE JOHN IV SOCIAL CLUB LTD....................................

(Appeal against the ruling and orders of the High Court of Uganda sitting at Kampala High Court Circuit (Katutsi, J) dated 28^th May 2004 in High Court Civil Suit No.420/2003)

# JUDGMENT OF TWINOMUJUNI, JA.

I have had the advantage of reading the judgment, in draft, of Hon. Justice C. K. Byamugisha, JA. I agree with it and I have nothing useful to The appeal should be allowed with orders as proposed by add. Byamugisha, JA.

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

$UU$ Hon. Justice A. *Winomujuni* JUSTICE OF APPEAL

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