[2025] UGCommC 220

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISCELLANEOUS APPLICATION NO. 723 OF 2025 (ARISING FROM CIVIL SUIT NO. 1114 OF 2024)** 10 **LIFE MEDICAL AND RESCUE INTERNATIONAL LTD ::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS NU WORLD PROPRIETARY LIMITED ::::::::::::::::::::::::::::: RESPONDENT**

# **BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA**

# 15 **RULING**

## Introduction

This application was brought by way of Notice of Motion under **Section 98 of the Civil Procedure Act, Cap. 282, Order 6 rules 28 and 29, Order 7 rule 11(d) and Order 52 rules 1, 2 and 3 of the Civil Procedure Rules**

- 20 **SI 71-1**, seeking orders that: - 1. *Civil Suit No. 1114 of 2024* be dismissed for want of jurisdiction in respect of the subject matter of the claim. - 2. Costs of this application be borne by the Respondent.

# Background

25 The background of the application is contained in the affidavit in support deponed by **Mr. Jabaru Luyima** an Advocate of the High Court of Uganda, and is summarized below:

- 5 1. That on 25th May, 2023, the parties executed a Memorandum of Agreement in Sandton, Gauteng in the Republic of South Africa whose performance would be in the Republic of Botswana. - 2. That the Memorandum of Agreement states that its enforcement, construction, interpretation and settlement of any dispute arising 10 from it is exclusively subject to the laws of the Republic of South - 3. That during the subsistence of the Agreement, the parties developed a misunderstanding which resulted into the Respondent instituting a claim in the High Court of Uganda vide *Civil Suit No. 1114 of* 15 *2024* against the Applicant. - 4. That this Court has no jurisdiction to hear *Civil Suit No. 1114 of 2024* since the Respondent ought to have filed the same in the Courts of the Republic of South Africa under its governing laws, which the parties bound themselves to in the Memorandum of 20 Agreement.

In reply, **Mr. Reagan Ahumuza** the Respondent's lawyer and an Advocate of the High Court of Uganda, opposed the application contending that:

- 1. The Applicant, a Company incorporated in Uganda and carrying on business in Uganda, entered into a Memorandum of Agreement with - 25 the Respondent, which was for the sale of assorted medicines that had to be delivered from Uganda to the Ministry of Health, Central Medical Stores in the Republic of Botswana. - 2. The Respondent declared a breach of contract and engaged the Applicant to no avail hence the institution of *Civil Suit No. 1114 of* 30 *2024*. - 3. The Applicant carries on business within the local limits of the jurisdiction of this Court, the Agreement was partly performed in

Africa.

- 5 Uganda and the cause of action partly arose within the jurisdiction of this Court. - 4. This Court has original unlimited jurisdiction and the parties did not oust its jurisdiction. - 5. If this application is granted, the Respondent will be subjected to 10 unnecessary further costs and expenses.

In rejoinder, **Mr. Jabaru Luyima**, reiterated his previous averments and added that:

- 1. The Memorandum of Agreement was never partly executed in Uganda nor did the cause of action partly arise within the local limits 15 of this Court. That the Applicant is neither in breach nor liable for the remedies being sought in the main suit. - 2. Much as the Applicant carries on business within the local limits of the jurisdiction of this Court, it does not warrant this Court to handle the dispute between the parties. - 20 3. Where parties to an agreement expressly state the jurisdiction law, such law shall be the governing law which the parties need to comply with. - 4. The Applicant will suffer a serious financial loss in financing and facilitating its witnesses who are all in both the Republic of South 25 Africa and the Republic of Botswana. - Representation

The Applicant was represented by Learned Counsel Edgar Ayebazibwe of **M/s Mwesigwa Rukutana & Co. Advocates** while the Respondent was represented by Learned Counsel Reagan Ahumuza of **M/s SM & Co.** 30 **Advocates**.

5 The parties filed their written submissions as directed and the same have been considered by the Court.

## Issues for Determination

Following **Order 15 rule 5(1) of the Civil Procedure Rules** and the case of *Oriental Insurance Brokers Ltd Vs Transocean (U) Limited SCCA*

- 10 *No. 55 of 1995*, this Court rephrased the issues to read as follows: - 1. Whether this Court has the jurisdiction to hear and determine *Civil Suit No. 1114 of 2024*? - 2. What remedies are available to the parties?

In its affidavit in reply, the Respondent raised a preliminary objection to 15 the effect that the instant application is frivolous and vexatious, and is simply a ploy to waste this Court's time, and that it should be dismissed with costs.

**Order 6 rule 28 of the Civil Procedure Rules**, is to the effect that a point of law that is pleaded when so raised is capable of disposing of the suit, 20 may by consent of the parties or by order of the Court on the application of either party, be set down for hearing and disposed of at any time before the hearing. It is therefore trite that where a preliminary objection is capable of disposing of the matter in issue, it is judicious to determine the objection before embarking on the merits of the case. (See: *Uganda*

25 *Telecom Ltd Vs ZTE Corporation SCCA No. 3 of 2017).*

Guided by the above authorities, I shall proceed to resolve the preliminary point raised.

Whether this application is frivolous and vexatious?

5 The Respondent avers that the application is frivolous and vexatious, and is simply a ploy to waste Court's time. In rejoinder, the Applicant contended that the application is meritorious and raises substantial elements which need to be adjudicated upon by this Court.

A frivolous and vexatious suit, as defined in *R Vs Ajit Singh S/o Vir Singh* 10 *[1957] EA 822 at 825*, is paltry, trumpery, not worthy of serious attention, having no reasonable ground or purpose.

I have perused the application, the Applicant's affidavits and attachments thereto. Therein, the Applicant raises an issue regarding the jurisdiction of this Court to hear and determine *Civil Suit No. 1114 of 2024*. In my

15 view, such an issue requires serious attention and determination by Court. Therefore, the application is not frivolous or vexatious. In the premises, Court shall proceed to determine the application on its merits.

Accordingly, this preliminary point fails.

Issue No. 1: Whether this Court has the jurisdiction to hear and determine 20 *Civil Suit No. 1114 of 2024*?

#### Applicant's submissions

Learned Counsel for the Applicant contended that **Clause G** of the Memorandum of Agreement between the parties is to the effect that any dispute arising from the Agreement shall be governed by and construed in 25 accordance with the laws of the Republic of South Africa. That therefore, the parties intended to be governed by the laws of the Republic of South Africa. That where a party does not demonstrate reasons why he or she negated the provisions as to jurisdiction, the selected forum and or nominated choice would be enforced. Learned Counsel relied on the

- 5 **Halsbury's Laws of England** and the cases of *Icco Cooperation Uganda Vs Trivision Uganda Ltd HCMA No. 64 of 2018*, *Huadar Guangdong Chinese Co. Ltd Vs Damco logistics Uganda Ltd HCCS No. 4 & 5 of 2012* and *Beiersdorf East Africa Ltd & Another Vs Dembe Trading Enterprises Ltd Misc. Appeal No. 45 of 2022*. - 10 Further, that in the case of *International Tin Association Limited Vs Kerilee Investments Limited HCMA No. 368 of 2019,* Court while dealing with the issue of whether Courts had jurisdiction by virtue of the fact that a contract was performed in Uganda, held that the following ought to be taken into account; in what Country the evidence on the issues of 15 fact is situated or more readily available and the effect of that on the relative convenience and expense of trial between the Ugandan Courts and the foreign Court; whether the law of the Foreign Court applies and, if so, whether it differs from the Ugandan law in any material respects; with what Country either party is connected, and how closely; whether the 20 Defendants genuinely desire trial in the foreign Country, or are only seeking procedural advantages and whether the Plaintiffs would be prejudiced by having to sue in a foreign Country.

Learned Counsel then contended that in the instant case, the Respondent is registered in South Africa, the Agreement was executed in the Republic 25 of South Africa and the parties bound themselves to be governed by the laws of the Republic of South Africa if any dispute arose. That the performance of the Agreement was in the Republic of Botswana at Sir Seretse Kharma International Airport and the cause of action of breach arose in the Republic of Botswana since the assorted medicines were to 30 conform to the Botswana Import Medicines Regulatory Authority. That the Applicant is at the verge of suffering financial losses if the application is

5 denied since its witnesses are situated in both the Republic of South Africa and the Republic of Botswana yet the Respondent will not be prejudiced if it files the suit in South Africa as agreed in the Agreement.

In conclusion, Learned Counsel for the Applicant submitted that as per the Agreement, the parties freely nominated the laws of the Republic of 10 South Africa to govern their contractual relationship and that the Applicant never submitted itself to the jurisdiction of the High Court. That it would also be against public policy and the freedom of parties to contract to impose jurisdiction that parties never intended to submit themselves to.

## Respondent's submissions

- 15 Learned Counsel for the Respondent relied on **Article 139(1) of the Constitution of the Republic of Uganda, 1995** and **Section 14 of the Judicature Act, Cap. 16** to assert that the High Court is conferred with the jurisdiction to determine this matter since the parties did not oust this Court's jurisdiction. - 20 That **Section 15 of the Civil Procedure Act** also provides that a suit may be instituted either where the Defendant actually, voluntarily resides, carries on business or where the cause of action arises. That it is an admitted fact that the Applicant, the Defendant in the main suit, is a Company duly incorporated and carries on business in Uganda as stated 25 in the plaint and under paragraph 9 of the Respondent's affidavit, a fact not disputed by the Applicant. That the Agreement was completed virtually by both parties in different jurisdictions and the money was payable to the Applicant's bank account in Standard Chartered Bank, Speke Road Branch through Rand Merchant Bank, an intermediary Bank in South 30 Africa.

5 Further, that the Agreement has no jurisdiction clause and the clause being relied upon by the Applicant does not oust this Court's jurisdiction. Learned Counsel relied on the case of *Larco Concrete Products Ltd Vs Transair Ltd [1987] HCB 39.* That in the event the Court finds it necessary to form an opinion on the governing law of the Agreement, it 10 may obtain an expert opinion on such law. That for the witnesses, the Applicant has indicted that they will be its Directors, who if are not within the jurisdiction of this Court, the Court has established electronic mechanisms within which witnesses can appear virtually and the matter is heard. In conclusion, Learned Counsel submitted that the Respondent 15 has shown that this Court is clothed with the jurisdiction to determine

# *Civil Suit No. 1114 of 2024* as prescribed by law.

### Applicant's submissions in rejoinder

Learned Counsel for the Applicant submitted that both parties explicitly ousted the jurisdiction of this Court to handle any disputes arising from 20 the Agreement that was executed between them. Secondly that the contract was performed outside Uganda. That the Memorandum of Agreement executed by the parties explicitly recognizes the laws of the Republic of South Africa to be the governing law and therefore, the parties are bound.

25 Learned Counsel further contended that for contracts, the Courts look at the intention of the parties and in the absence of the intention, then the place of performance. That much as the Respondent contends otherwise, the Agreement was signed from Sandton City in the Republic of South Africa and the supply/delivery of the contracted goods was to be made in 30 Botswana. That the cost of having the matter adjudicated upon in Uganda is extremely high and thus unreasonable for the Applicant and the

5 witnesses from both parties are not situated in Uganda but in the Republic of South Africa and the Republic of Botswana.

In conclusion, Learned Counsel for the Applicant submitted that since the Agreement was executed in South Africa and implemented in the Republic of Botswana, the cause of action arose in the Republic of Botswana and 10 the Republic of South Africa where the evidence of the case can be readily available considering that the Republic of South Africa is also the registered place of business of the Respondent, the Plaintiff in the main suit. Learned Counsel then prayed that the suit be dismissed and the Respondent be guided to file its suit in the Republic of South Africa.

## 15 Analysis and Determination

I have considered the application, the affidavits and evidence on Court record as well as the parties' submissions and authorities therein.

I hasten to clarify from the outset that an application disputing the jurisdiction of Court ought to have been brought by Summons in 20 Chambers as stipulated under **Order 9 rule 3(2) of the Civil Procedure Rules** and not by Notice of Motion as in the instant case. However as was held in the case of *Saggu Vs Roadmaster Cycles (U) Ltd [2002] 1 EA 258*, citing the wrong law or the wrong procedure does not invalidate proceedings as long as the opposite party is not prejudiced and the Court 25 is clothed with the jurisdiction to determine such an application.

**Section 98 of the Civil Procedure Act** empowers this Court to make such orders as may be necessary for the ends of justice.

**Order 9 rule 3(1)(g) of the Civil Procedure Rules** stipulates that a Defendant who wishes to dispute the jurisdiction of the Court, may apply 5 to the Court for a declaration that in the circumstances of the case the Court has no jurisdiction over the Defendant in respect of the subject matter of the claim or the relief or remedy sought in the action.

**The Black's Law Dictionary, 9th Edition, at page 927** defines jurisdiction as a Court's power to decide a case or issue a decree. The

10 **Uganda Civil Justice Bench Book 2016 on page 1** relied on **Sir Dinshah Fardunji Mulla, in The Code of Civil Procedure, (Vol 1, 17th Edn, LexisNexis) 409** to state that *jurisdiction is the extent of the authority of a Court to administer justice not only with reference to the subject matter of the suit but also to the local and pecuniary limits of its jurisdiction.*

## 15 **M. Ssekaana and S. Ssekaana in Civil Procedure and Practice in Uganda 2nd Edition, at Page 17** states that;

*"It is a well-established law that jurisdiction cannot be conferred on a Court by consent of the parties, and any waiver on their part cannot make up for the lack of a defect of jurisdiction.*

20 *A Court cannot give itself jurisdiction in a case otherwise outside its jurisdiction on the ground that it would be for the convenience of parties and witnesses*."

Therefore, it is trite that jurisdiction must be prescribed by the law. Thus, **Article 139(1) of the Constitution of the Republic of Uganda, 1995,** 25 provides for the jurisdiction of the High Court and it states that;

> *"The High Court shall, subject to the provisions of this Constitution, have unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by this Constitution or other law."*

5 In similar wording, the above provision is reflected in **Section 14(1) of the Judicature Act.**

In effect, no Court can confer jurisdiction upon itself, and where a Court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. (See the case of *Desai Vs Warsama [1967]*

10 *E. A 351*)

The main argument of this application is that the Applicant is invoking the doctrine of *forum non conveniens*, urging the Court to exercise its discretion to dismiss *Civil Suit No. 1114 of 2024* for want of jurisdiction citing the reason that the Respondent filed the suit in the wrong Court, 15 not envisaged by the parties to the Memorandum of Agreement, because the governing law clause in the said Memorandum of Agreement implies that the jurisdiction for dispute resolution is to be in the Republic of South Africa, according to its laws, contrary to the Respondent, who asserts that the governing law clause did not oust the jurisdiction of this Court.

20 As was held by **Hon. Justice Stephen Mubiru** in the case of *Koboko District Local Government Vs Okujjo Swali HCMA No. 1 of 2016*, jurisdiction is the first test in the legal authority of a Court and its absence disqualifies the Court from exercising any of its powers.

It is now trite that the original jurisdiction of the High Court is unlimited 25 and can only be limited by the Constitution itself. (See: *Transtrac Ltd Vs Damco Logistics Uganda Limited HCMA No. 394 of 2010*, *Ozuu Brothers Enterprises Vs Ayikoru Milka, High Court Civ. Rev. No. 02 of 2016* and *Businge Maxim and Another Vs Sinopec Services (U) Ltd HCCS No. 07 of 2023*).

5 However, Courts have also recognized that where parties bind themselves by an exclusive jurisdiction clause, effect shall ordinarily be given to that obligation unless the party suing in the non-contractual forum discharges the burden cast on him by showing strong reasons for suing in that forum.

(See: *Maersk Agency Uganda Limited Vs Derrick Munywevu &* 10 *Another HCMA No. 1177 of 2021* and *CMA CGM Uganda Ltd Vs M/s H. Ssekatawa International Ltd HCCA No. 27 of 2013*).

In the instant case, it is undisputed that the parties executed a Memorandum of Agreement, annexure **"A"** attached to the affidavit in support, dated 25th May, 2023 in Sandton City in the Republic of South

15 Africa. It is also undisputed that the goods, the subject matter of the contract, were to be delivered to the Ministry of Health of the Republic of Botswana.

The Applicant now contends that the Agreement ousted the jurisdiction of this Court when it stipulated that the governing laws shall be the laws of

20 the Republic of South Africa. On the other hand, the Respondent avers that the clause being relied upon by the Applicant only provides for the governing law, which can be obtained through an expert opinion, but does not oust the jurisdiction of this Court.

**Clause G (1)** of the Memorandum of Agreement attached to the affidavit in 25 support as annexure **"A"** provides as follows:

## *"G. GOVERNING LAW*

*(1) This agreement shall be governed by and construed in accordance with the laws of Republic of South Africa, without regard to its conflict of laws principles."*

5 From the wording of the clause and in my opinion, the above clause does not oust the jurisdiction of this Court to settle the disputes between the parties, it only stipulates the laws that govern the Agreement and the laws to be applied when construing its terms.

In the case of *Larco Concrete Products Ltd Vs Transair Ltd (supra)*, the 10 Court held that:

*"The law governing the contract is not a decisive factor in determining whether a particular Court has or should exercise jurisdiction to entertain disputes arising out of the contract. What matters most is whether parties unequivocally submitted to the* 15 *exclusive jurisdiction of a foreign Court and whether it is proper and just for the Court where the proceedings are brought to entertain the action. The High Court jealously guards its jurisdiction and therefore any instrument purporting to oust its jurisdiction must do so in clear and in uncertain terms..."*

20 The position in the above case is that a jurisdiction clause differs from the law governing the contract, a position I agree with because as postulated in the case quoted above, the law governing the Agreement is not a decisive factor in determining whether a particular Court has or should exercise jurisdiction to entertain disputes arising out of the contract. This means 25 that, in the absence of a jurisdiction clause, the governing law clause in the agreement does not oust the jurisdiction of the High Court unless its wording unequivocally sets out the parties' submission to exclusive jurisdiction, which is not the case in the instant matter.

**Halsbury's Laws of England (5th Edn) (2019**), distinguishes between the 30 governing law clause and the jurisdiction clause, and it states that:

5 *"A jurisdiction clause does not make provision as to the substantive law that will apply to the interpretation of an agreement and in the event of a dispute in relation to it. Merely submitting to the jurisdiction of the English and Welsh Courts does not automatically operate as a choice of English and Welsh law as* 10 *the proper law of the agreement. It is important to note that jurisdiction and governing law are separate issues."*

Furthermore, according to **Halsbury's Laws of England (5th Edn) (2019**), a governing law clause (also referred to as an 'applicable law' or 'choice of law' clause) is one by which the parties expressly state in their contract 15 which law should govern it whereas a jurisdiction clause is one by which the parties choose where a dispute is to be determined, irrespective of the law which is applied.

**The Black's Law Dictionary, 9th Edition, at page 929** defines exclusive jurisdiction as the Court's power to adjudicate an action or class of actions 20 to the exclusion of all other Courts.

An "exclusive choice of Court agreement" means an agreement concluded by two or more parties that designates, for the purpose of deciding disputes which have arisen or may arise in connection with a particular legal relationship, the Courts of a specified Country or one or more specific 25 Courts of the specified Country to the exclusion of the jurisdiction of any other Courts.

In the case of *Maersk Agency Uganda Limited Vs Derrick Munywevu & Another (supra)*, it was held that:

*"Any instrument purporting to oust its (High Court's) jurisdiction must* 30 *do so in clear and uncertain terms. Where the parties have not only*

- 5 *chosen foreign law to govern their agreement, but have unequivocally submitted to the exclusive jurisdiction of the foreign Courts, the jurisdiction of the High Court is ousted (see Uganda Telecom Ltd Vs Rodrigo Chacon t/a Andes Alpes Trading, H. C. Misc. Application No. 37 of 2008)."* - 10 Thus, a governing law clause specifies the substantive law to be applied in interpreting the Agreement, and a jurisdiction clause determines the procedural law, such as the jurisdiction of filing disputes arising from a contract but they are distinguishable.

That said, even in cases where a jurisdiction clause is present, case law 15 has established factors that must be considered before the Court exercises its discretion in light of the clause. **Halsbury's Laws of England** also sets out these factors, and they are;

- *(1) in what country the evidence on the issues of fact is situated, or more readily available, and the effect of that on the relative convenience and* 20 *expense of trial as between the English and foreign Courts;* - *(2) whether the law of the foreign Court applies and, if so, whether it differs from English law in any material respects;* - *(3) with what country either party is connected, and how closely;* - *(4) whether the Defendant genuinely desires trial in the foreign country,* 25 *or is only seeking procedural advantages; and* - *(5) whether the claimant would be:* - *(a) prejudiced by having to sue in the foreign Court because they would be deprived of security for their claim; or*

5 *(b) unable to enforce any judgment obtained; or*

*(c) faced by a time-bar not applicable in England; or*

*(d) for political, racial, religious or other reasons, unlikely to get a fair trial.*

In the case at hand, as per **Clause G (1)** of the Agreement, the parties only 10 chose the laws of the Republic of South Africa to govern their Agreement but did not unequivocally submit to the exclusive jurisdiction of a foreign Court. Therefore, the jurisdiction of the High Court of Uganda was not ousted by the parties.

In the premises, my considered view is that this Court has the jurisdiction 15 to hear and determine *Civil Suit No. 1114 of 2024*.

Also, I have noted the Applicant's averment regarding the costs expected to be incurred regarding the witnesses based in the Republic of South Africa and the Republic of Botswana. However, as rightly submitted by Learned Counsel for the Respondent, this Court is enjoined under the

20 **Judicature (Electronic Filing, Service and Virtual Proceedings) Rules, SI No. 21 of 2025**, to support the testimonies of witnesses through virtual proceedings from anywhere in the world.

Further, in the case of *Maersk Agency Uganda Limited Vs Munywevu and Another (supra*), the Court, while commenting on exclusive 25 jurisdiction clauses, observed that, *matters of convenience or connection are generally of little relevance in an application to enforce a foreign exclusive jurisdiction clause.*

5 In the premises, I find that this Court has the jurisdiction to hear and determine *Civil Suit No. 1114 of 2024.*

Therefore, issue No.1 is answered in the affirmative.

## Issue No. 2: What remedies are available to the parties?

Having resolved issue No. 1 above in the affirmative, this application is

10 devoid of merit. Consequently, this application is hereby dismissed with costs to the Respondent.

I so order.

Dated, signed and delivered electronically via ECCMIS this **10th** day of **July, 2025**.

Patience T. E. Rubagumya **JUDGE** 10/7/2025 6:45am

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