[2025] UGCommC 185

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL COURT DIVISION) MISCELLANEOUS APPLICATION NO. 099 OF 2025** 5 **(ARISING OUT OF CIVIL SUIT NO. 0579 OF 2024)**

### **KARUNGI ELIZABETH::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

#### **VERSUS**

#### **1. CAIRO BANK UGANDA LIMITED**

### 10 **2. KKINGO PARENTS' TRANSPORTERS COMPANY LTD::::::::RESPONDENTS**

**Before: Hon. Lady Justice Dr. Ginamia Melody Ngwatu**

#### **RULING**

- 15 The applicant brought this application by way of chamber summons under article 28 of the 1995 Constitution of the Republic of Uganda, section 37 of the Judicature Act, section 98 of the Civil Procedure Act, and Order 10 Rules 12, 14 and 24 of the Civil Procedure Rules S. I. 7l-1, as amended. The application seeks orders that: - 1. the 1st respondent provides certified copies of: - a) All the default notices issued against the 2nd 20 respondent; - b) The sale agreement for motor vehicle Isuzu bus registration no. UBE 689R; - c) The advert of sale of motor vehicle Isuzu bus registration no. UBE 689R; - d) The valuation report for the motor vehicle Isuzu bus registration no. UBE 689R; - e) The notice for sale for motor vehicle Isuzu bus registration no. UBE 689R; - 25 f) The bid applications for motor vehicle Isuzu bus registration no. UBE 689R; - g) The 2nd respondent's loan statement from the date of disbursement to date. - 2. Costs of the application be provided for.

The grounds of the application were stated in the affidavit of the applicant, Ms. Karungi 30 Elizabeth, and are briefly that:

- 1. The applicant purchased four Isuzu buses on 6th October 2021 from the 2nd respondent at a purchase price of Ugx 1,250,000,000. - 2. The said buses were mortgaged by the 2 nd respondent to the 1st respondent as security for a loan; and the 1st respondent agreed to the sale transaction between the applicant and the 2 nd 35 respondent;

- 3. Upon execution of the sale agreement on 6th October 2021, the applicant paid the first installment to the 2nd respondent of Ugx 600,000,000 through Postbank Account Number 1630015000109 Masaka Branch. - 4. The parties agreed that the remaining balance of Ugx 650,000,000 would be paid to the 2 nd 5 respondents in monthly installments of Ugx 28,000,000 through its bank account with the 1st respondent to service its loan. - 5. The 2nd respondent handed over to the applicant possession and control of the Isuzu buses registration numbers: UBB 928B, UBB 940T, UBB 598T and UBE 689R; and an undertaking was made to handover all the documents relating to the said buses to the 10 applicant to enable her transfer the same into her name upon completion of payment of the purchase price as stipulated in the sale agreement - 6. After paying the full purchase price of Ux1,250,000,000 in accordance with the terms set out in the sale agreement, the respondents did not release the registration documents for the said four buses; thereby breaching the contract; - 15 7. A suit was consequently instituted against the respondents jointly and severally for breach of contract of sale of the Isuzu buses registration numbers: UBB 928B, UBB 940T, UBB 598T and UBE 689R vide Civil Suit No. 0579 of 2024, which is pending hearing before this court; - 8. After filing *Civil Suit No. 0579/2024*, the 1st respondent in connivance with the 2nd 20 respondent illegally attached and sold one of the suit motor vehicles, Isuzu bus registration No. UBE 689R, in recovery of a debt against the 2nd respondent; - 9. The 1st and 2nd respondents did not attach the document applied for, to their written statements of defence. - 10. The documents applied for in the 1st respondent's possession are necessary for the proper - 25 determination of Civil Suit No. 579/2024 which is pending before this court. - 11. It is in the interest of justice that the application is granted. - 12. The respondents will not be prejudiced in any way if the application is granted.

The respondents did not oppose the application as no affidavit in reply was filed on ECCMIS. 30 The respondents were, however, duly served as an affidavit of service was filed on ECCMIS on 5 th May 2025 confirming that M/s Tumusiime Kabega and Co. Advocates, counsel for the 1st respondent; and M/s Kitimbo Associated Advocates, Counsel for the 2nd respondent were duly served on 22nd April 2025 and notified about the application for discovery and the scheduled hearing on 6th May 2025 at 3:00pm.

# **Representation at the hearing**

The applicant was represented by Mr. Kaweesi John Chris, of M/s Prudens Law Advocates; while the 2 nd respondent was represented by Mr. Kitimbo Simon Peter of M/s Kitimbo Associated Advocates. The 1st respondent was not represented. The parties were to file written

submissions and it is only the applicant that filed its written submissions and the same are on the Court record.

### **Issue for determination**

5 The main issue for determination in this application is whether the applicant has proved the grounds to warrant a grant of an order for discovery of the documents sought?

# *Determination of court*

10 Discovery is a medium through which evidence that is not accessible to the applicant for use at trial is made available. Such evidence is also sought as it may be introduced as evidence during trial. Discovery is provided for under Order 10 rule 12 of the Civil Procedure Rules SI 71-1, as amended, which states that any party may, without filing any affidavit, apply to the court for an order directing any other party to the suit to make discovery on oath of the documents, which are 15 or have been in his or her possession or power, relating to any matter in question in the suit.

Here, court will make an order for discovery if it is satisfied that the discovery is necessary. In such an instance, court may make an order, either generally or limited to certain classes of documents, as it may, in its discretion, deem fit (see *Dresdner Bank Aktiengesllshaft vs Sango* 20 *Bay Estate and Others [1971] HCB 80*; *Kenyi Juma vs Grindlays Bank (U) Ltd [1982] HCB 116; B vs B (Matrimonial Proceedings: Discovery) [1978] Fam 181, [1978] 3 WLR 624* and *Taj Deen vs Dobrosklonsky [1957] E. A. 379*).

Court will, however, not order for discovery if it is of the opinion that it is not necessary either 25 for the fair disposal of the suit or for purposes of saving costs (see Order 10 rules 12 and 14 of The Civil Procedure Rules). This order for discovery is, therefore, a discretionary one; and an order for discovery may be granted if it is proved that it is relevant. (see Dresdner Bank Ag. vs Sango Bay Estates Ltd (No. 3) [1971] 1 EA 326 and Dresdner Bank Ag. vs Sango Bay Estates Ltd (No. 4) [1971] 1 EA 409).

It is a requirement that the document or information sought must be shown to be relevant since evidence must be relevant to be admissible. In the case of *Simbamanyo Estates Limited & Peter Kamya vs Equity Bank Uganda Limited & 4 Others Miscellaneous Application No. 0583 of 2022,* the applicant is only required to demonstrate that there is a sufficient prima facie basis for 35 believing the evidence sought exists, it is material and relevant to the issues at the trial.

The applicant submitted that it seeks certified copies of various documents from the 1st respondent including: all default notices issued against the 2nd respondent; the sale agreement for motor vehicle Isuzu bus registration no. UBE 689R; the advert of sale of motor vehicle Isuzu bus

registration no. UBE 689R; the valuation report for the motor vehicle Isuzu bus registration no. UBE 689R; the notice for sale for motor vehicle Isuzu bus registration no. UBE 689R; the bid applications for motor vehicle Isuzu bus registration no. UBE 689R; and the 2nd respondent's loan statement from the date of disbursement to date.

However, in the course of determining this application, it was established that a civil suit between the applicant and the 2nd respondent herein, pertaining to the same issues was already determined at Masaka High Court vide *Civil Suit No. 20/2022*. This raises an issue of res judicata. The 2nd respondent herein sued the applicant for breach of contract vide *Civil Suit No.* 10 *20/2022* at Masaka High Court. The said suit was for recovery of Ugx 552,000,000 and or in the alternative, an order for return of the very same four buses that the applicant filed a suit before this court for, that is motor vehicles registration no: UBB 928B, UBB 940T, UBB 598T and UBE 689R. The said *Civil Suit No. 20/2022* was determined in favour of the 2nd respondent on 16th April 2025; hence *res judicata*.

"res judicata" is defined in Black's Law Dictionary 10 th 15 Edition as:

> *"An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…"*

20 Res judicata is provided for under Section 7 of The Civil Procedure Act Cap 282 provides that: *"no court may 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 competent to try the subsequent suit or the suit in which the* 25 *issue has been subsequently raised, and has been heard and finally decided by that court."*

By virtue of the legal principle of *res judicata*, this application cannot be entertained. A civil suit between the second respondent and the applicant herein, and traversing the same issue of breach 30 of contract pertaining to the very same motor vehicles was heard and determined at Masaka High Court. The previous decision rendered at Masaka High Court is binding. The same matter cannot be re-litigated on. This principle was observed in the case of *Njanju vs Wambugu & Another Nairobi HCC No. 2340/1991 (unreported)* where he stated that:

*"if parties were allowed to go on litigating forever over the same issue with the* 35 *same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift in every occasion he comes to court, then I do not see the use of the doctrine of res judicata."*

It follows, therefore, that litigation must come to an end. The applicant/plaintiff and the 2nd respondent/defendant herein are the same parties in High Court Masaka *Civil Suit No. 0020/2022,* in which judgment was entered against the applicant/plaintiff and an appeal is being pursued.

Much as pleadings from a different matter are not admissible as evidence in another, the exception, however, is if they are used to demonstrate the existence of a prior judgment; hence *res judicata*. The legal doctrine of *res judicata* estoppes the same parties from having a matter re-litigated. In this instance, the only difference is that Cairo Bank was added as a party to the 10 civil suit before this Court in an attempt to hoodwink the court into re-hearing the suit.

Entertaining this application and the main suit from which it arises would be a waste and an abuse of court's time. Pursuant to the principle of res judicata, this application is hereby dismissed with costs to the respondent.

*Dr. Ginamia Melody Ngwatu Ag. Judge 23 th June 2025*

20 *Ruling delivered via ECCMIS*