[2024] UGHCCD 170

### 5 **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

#### **(CIVIL DIVISION)**

#### **CIVIL REVISION NO. 012 OF 2023**

#### **(ARISING FROM CIVIL SUIT NO. 24 OF 2021)**

10 **MUGANGA MARK ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

#### **VERSUS**

**MATOVU CHARLES ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

#### **BEFORE: HON. JUSTICE ESTA NAMBAYO**

#### **RULING**

- 15 The Applicant, Muganga Mark, brought this application under **Sections 83 (a) of the Civil Procedure Act and Order 52 rules 1 & 3 of the Civil Procedure Rules** against the Respondent, Matovu Charles seeking for orders of this court that: - - **1. The Default Judgment and Decree of Her Worship Nsenge Roseline in Civil Suit No. 24 of 2021 be revised and set aside.** - 20 **2. The costs of this application be provided for.**

The grounds of this application are laid down in the affidavit in support of the application by the Applicant but briefly are that: -

- **1. The Respondent filed a summary suit against the Applicant at the Chief Magistrates Court of Kasangati seeking to recover Ugx. 13, 000, 000/=** 25 **(thirteen million Uganda shillings only) which the Respondent alleged to have arisen out of a car sale Agreement; which fact the Applicant contests.** - **2. The Trial Magistrate entered a Default Judgment without compliance with the rules of service of summons thereby exercising her jurisdiction** 30 **with material irregularity; which requires revision by this Honourable Court.**

- **3. The Trial Court further taxed the bill of costs without compliance with the rules of taxation thereby arriving at an exorbitant bill; which is also another material irregularity requiring the revision by this Court.** - 35 **4. An error material to the merits of the case and a miscarriage of justice have occurred which merit calling for the record of the Magistrates Court.**

**5. It is in the interests of justice that this Court grants the orders sought.** The Respondent filed an affidavit - in - reply opposing this application.

40 **Brief background to the application.**

The brief background to this application is that the Respondent filed a summary suit, Civil Suit No. 24 of 2021 at the Chief Magistrate's Court at Kasangati seeking for recovery of Ugx. 13,000,000/= arising from breach of agreement.

On the 19th November, 2021, a default judgment was entered against the Applicant and on the 14th 45 of November, 2022, the Respondent's bill of costs was taxed and granted at Ugx. 6, 110, 000/=. It is the Applicant's contention that the trial Magistrate entered the Default Judgment with material irregularity which requires

## revision by this Honourable Court, hence this application.

## **Representation**

50 Learned Counsel Mark Kiiza appeared for the Applicant while M/s Bikadho Associated Advocates represented the Respondent. Written submissions were filed by Counsel for the parties as directed by Court.

### **Submissions**

## **Objection by Counsel for the Respondent**

- 55 In his submissions, Counsel for the Respondent raised an objection that this application is incompetently before this Court as the Applicant by the time of filing this application, Civil Revision No. 12 of 2023 before this court, had filed MA No. 35 of 2023 in the Chief Magistrate's Court at Kasangati which was pending a ruling. He referred court to annexures G & H to the affidavit in reply and explained that - 60 both applications are between the same parties seeking for the same remedy of setting aside the default judgment and decree in Civil Suit No. 24 of 2021. Counsel explained that the same matter is directly and substantially in two different Courts with jurisdiction, seeking the same remedy of setting aside Civil Suit No.

24 of 2021. That this contravenes the lis pendens rule and Section 6 of the Civil 65 Procedure Act, and it also amounts to abuse of court process.

He prayed that this court be pleased to dismiss this application with costs so that the Chief Magistrate's court delivers its ruling without fear of contradiction to the decision of this court. That the Applicant will still retain the option to appeal if he is not satisfied with the lower court decision.

## 70 **Applicant's submissions in reply to the objection.**

In reply, Counsel for the Applicant submitted that the Lis pendens rule is inapplicable in the circumstances of this case because the matters in issue are totally different. That Section 6 of the Civil Procedure Act which underpins the Lis pendens rule requires a party to demonstrate that: -

- 75 a. The matters in issue are the same; - b. The matters must involve the same parties; - c. The suit must be pending in the same Court or any other Court with similar jurisdiction

Counsel submitted that MA No. 35 of 2023 before the Chief Magistrates Court of 80 Kasangati was an application brought under Order 36 rule 11 of the Civil Procedure Rules while this application is brought under Section 83 of the Civil Procedure Act seeking for revision orders. That evidence is abundant that there is no pending suit before this Court of the same nature as the instant case and thus the Lis Pendens rule has not been violated and it goes without saying that the grounds 85 that are necessary to succeed on both matters are totally different.

- Counsel further submitted that the matters are not before Courts with similar jurisdiction thereby failing to satisfy the 3rd ground for the success of the Lis pendens rule since Magistrates Courts have no revisionary powers and as such the ruling in this case cannot conflict with the decision in the Magistrates Court. That - 90 in any case, if the matters in this case are decided on the merits, they could enable a faster disposal of the case since some matters in the Magistrates Court will be rendered res judicata and as a result. Counsel emphasized that there is no risk of multiplicity of suits or conflicting rulings since the matters under consideration differ.

95 He relied on the case of **CNOCC Uganda Limited –v- Commissioner General Uganda Revenue Authority, MA 754 of 2020** wherein Wabwire J, held that;

"In my view, the lis Pendens rule is not to be applied mechanically. It is applied so as to give effect to the goal of avoiding irreconcilable decisions."

He prayed that this Honourable Court overrules the objection raised by Counsel 100 for the Respondent and proceeds to hear the application on the merits.

## **Analysis.**

## **Section 6 of the Civil Procedure Act provides that;**

"no court shall proceed with trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or

105 proceeding between the same parties, or between parties under whom they are or any of them claim, litigating under the same title, where that suit or proceeding is pending in the same or any other court having jurisdiction in Uganda, to grant the relief claimed."

Counsel for Respondent submitted that this matter is directly and substantially in

110 two different Courts with jurisdiction, seeking the same remedy of setting aside Civil Suit No. 24 of 2021. That this contravenes the lis pendens rule and Section 6 of the Civil Procedure Act.

Black's Law Dictionary, 11th edition defines the term lis pendens as a pending law suit.

115 In **Springs International Limited –v- Hotel Diplomate Ltd & Bonney M. Katatumba HCCS No. 227 of 2011,** court noted that the party relying on the lis pendens rule has to show that: -

a) the matter in issue in the present suit is also directly and substantially in issue in a previously instituted suit or proceeding;

- 120 b) The previously instituted suit or proceeding is between the same parties or parties under whom they or any of them claim; and c) The suit or proceeding is pending in the same or any other court having jurisdiction to grant the reliefs claimed. d) - - 125 e) What is important under the test in the Rule though, is the nature of the reliefs sought in each suit in respect of the subject matter in issue.

f) The filing of a multiplicity of suits is not just an abuse of the court process but potentially exposes the concerned judicial officers to the danger of arriving at different and perhaps conflicting decisions in cases with the same facts. This would

130 have far reaching consequences as it would create uncertainty and inconsistency in court decisions.

I have looked at the two suits vide; MA No. 35 of 2023 before the Chief Magistrates Court at Kasangati and the suit before me and have noted that;

- 1. The parties in both suits are the same - 135 2. Both courts have jurisdiction to handle the respective applications presented by the Applicant. - 3. In the application before the Chief Magistrate's Court at Kasaganti, the Applicant seeks for orders that the default judgment and decree in Civil Suit No. 24 of 2021 dated 19 th November, 2021 be set aside, among others, 140 while in this application for revision, the Applicant also seeks for orders that the default judgment and decree of Her Worship Nsenge Roseline in Civil Suit No. 24 of 2021 be revised and set aside.

In both applications, the Applicant seeks to set aside the default judgement entered by the Learned Chief Magistrate, Rose Nsenge, at Kasangati Chief 145 Magistrate's court, which is the same remedy like in this application of revision. Both parties have already filed their written submissions in the case before the Chief Magistrate's Court.

In another application, MA No. 36 of 2023 where interim Orders were issued pending disposal of MA No. 35 of 2023, the following orders were made;

- 150 1. Execution of the default judgment and decree in Civil Suit No. 24 of 2021 is stayed until disposal of the main application in MA No. 35 of 2023. - 2. The applicant shall deposit Ugx. 4,000,000/= (Uganda shillings Four Million) in court as security within 30 days of this order before the main application is determined. - 155 3. Should the applicant fail to comply with the security for costs, the stay of execution will be set aside and the main application will be dismissed.

There is no evidence to show that the Applicant complied with the Court orders.

In view of the above evidence, I find no reason to doubt that the matters in issue in the instant suit are also directly and substantially in issue in the application 160 before the Chief Magistrates court. Therefore, I find that the subsequent filing of this application by the Applicant amounts to a violation of the lis pendens rule and as such, it renders this application untenable.

I find merit in the objection raised by Counsel for the Respondent, which I do hereby uphold and make orders that: -

## 165 **1. This application be and is hereby dismissed**

# **2. The Applicant will pay costs to the Respondent.**

I so order.

**Dated, signed and delivered by mail and uploaded on ECCMIS on the 21st day of October, 2024.**

**Esta Nambayo JUDGE 21st/10/2024.**

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