[2024] UGHC 1067

### **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM**

# **MISCELLANEOUS APPLICATION No. 030/2023**

### **(Formerly GULU HIGH COURT - MISC. APPLICATION No. 021/2023)**

# 5 **(ARISING FROM HIGH COURT CIVIL SUIT No. 042/2023 &**

### **HIGH COURT CIVIL SUIT No. 048/2023)**

# **(Formerly GULU HIGH COURT - CIVIL SUITS No. 010/2023 & No. 20/2023)**

### **PADER-ABIM COMMUNITY MULTIPURPOSE ELECTRIC**

10 **COOPERATIVE SOCIETY LTD APPLICANT**

#### **Versus**

**1. THE ATTORNEY GENERAL**

# **2. UGANDA ELECTRICITY DISTRIBUTION CO. LTD**

# **RESPONDENTS**

# 15 **RULING**

#### **BEFORE HON. MR. JUSTICE PHILIP W. MWAKA.**

#### **Introduction and Background.**

- [1]. The Applicant seeks Orders from this Court for consolidation of Civil Suit No. 010/2023 and Civil Suit No. 020/2023 into one suit and provision for 20 Costs of this Application. - [2]. The suits were transferred from the High Court Gulu Circuit to the High Court Kitgum Circuit following its establishment in November, 2023 and are now registered as High Court Kitgum Circuit Civil Suit No. 042/2023 (Hereinafter the **"first suit"**) and High Court Kitgum Circuit Civil Suit No. 25 048/2023 (Hereinafter the **"second suit"**) respectively.

- [3]. The Application is instituted by Chamber Summons filed on the 30th August, 2023 re-issued on the 1st December, 2023 citing **Section 98 of the Civil Procedure Act, Cap. 71 (now Cap. 282) and Order 11 Rules 1 (a) & (b) and Rule 2 of the Civil Procedure Rules, SI 71 - 1.** - 30 [4]. These citations were revised by the **Law Revision Act, Cap. 3 and Statutory Instrument No. 049/2024: The Law Revision (Commencement of the 7 th Revised Edition) (Principal Laws) Instrument, 2024**.

#### **The Applicant's Case and Submissions.**

- 35 [5]. The Applicant's grounds in the supporting Affidavit, deponed by Mr. Ojok Simon Odoch - Chairman of the Applicant Company are: - both Civil Suits arise from breach of contract for supply of power and management of power system in the Northern Uganda service territory dated 10th October, 2014 between the Applicant and the Respondents with the second suit against the 1 st 40 Respondent only whilst the first suit is against both; the first suit principally seeks declarations regarding termination of the contract whilst the second suit is principally for recovery of Ushs. 4,036,237,793/- (Uganda Shillings Four Billion Thirty-Six Million Two Hundred Thirty-Seven Thousand Seven Hundred Ninety Three); the 2 nd Respondent is already in possession and management of the business subject of the suit; the 1st 45 Respondent is party to both suits as a Defendant before the same Court based on the same cause of action and arising from the same transactions; there are common questions of Law and fact and the same witnesses; and lastly, consolidation would prevent a multiplicity of suits and reduce expenses. It is his averment and 50 prayer that both suits be consolidated into one for purposes of determining the cause of action and liability. - [6]. The Applicant in its Written Submissions filed on the 11th June, 2024 addressed the Issues –

- i. Whether the Civil Suits should be consolidated and remedies available 55 in the circumstances. - [7]. The Applicant submitted and cited **Order 11 Rule 1 of the Civil Procedure Rules** on consolidation of suits and **Stumberg & Anor Vs. Potgeiter (1970) EA 323** holding that consolidation of suits should be ordered where there are common questions of Law or fact in actions having sufficient importance in 60 proportion to the rest of each action to render it desirable that the whole of the matters should be disposed of at the same time. - [8]. Conversely, consolidation of suits should not be ordered where there are deep differences between the claims and defences in each action. - [9]. The Applicant further cited, *inter alia*, **Misc. Application No. 1758/2021:** 65 **Sanjay Datta Vs. Bank of India & 3 Others** highlighting factors to be considered in the consolidation of suits, including – the pendency of the two suits before the same Court; both suits involving the same or similar questions of Law and fact; the claims for relief in both suits stemming from the same transaction or series of transactions; the consolidation being necessary to 70 avoid a multiplicity of suits; both suits being in the early stages of adjudication; a consolidation Order should not prejudice any of the Parties; and, the circumstances being desirable, just and equitable for the Application and consequent consolidation to be allowed. - [10]. The Applicant contended in justification of their prayer for consolidation that 75 – both suits are pending before this Court and are for common declarations sought to the effect that the action of the 1st and 2nd Respondent terminating the contract for supply of power in the Northern Service Province so that the 2 nd Respondent takes over is illegal and amounts to a breach of contract. - [11]. Citing **SCCA No. 14/2002: Mohan Musisi Kiwanuka Vs. Asha Chand** it 80 is contended that the Court should as much as possible avoid multiplicity of suits and therefore where permissible allow joinder of causes of action and consolidations of suits.

[12]. The Applicant contends that both the first and the second suit are in the early stages of adjudication with Pleadings having been filed by both Parties and 85 the matters not yet referred to Mediation and therefore no prejudice will be caused to the Parties. It is their case that it would be desirable, just and equitable for the Application to be allowed.

### **The Respondent's Case and Submissions.**

90 [13]. There is no Affidavit in Reply filed by either of the Respondents nor are there any Written Submissions filed by them despite the schedule provided by the Court on the 6th June, 2024. Thus, no Rejoinders are filed.

#### **Representation.**

- 95 [14]. Counsel, Mr. Walter Okidi Ladwar together with Counsel, Mr. Louis Odongo represented the Applicant. The Applicant was represented in Court by its Board Chairperson, Mr. Simon Odoch Ojok. - [15]. The Respondents were represented in Court by Counsel, Ms. Doris Twesigomwe, State Attorney and earlier by Counsel, Mr. Nyeko Joseph, Principal State Attorney. The 2nd 100 Respondent did not present any Company representative.

#### **Proceedings of the Court.**

- [16]. The matter came before the Court on the 9th November, 2023; 30th November, 2023; 13th March, 2024; 28th March, 2024 and the 6 th 105 June, 2024. - [17]. Directions were issued for filing Written Submissions which were complied with by the Applicant only.

#### 110 **Issue(s) for Consideration.**

[18]. The Issue for consideration to be addressed by this Court is – **Whether sufficient grounds have been provided for the consolidation of High Court Civil Suit No. 042/2023 and High Court No. 048/2023.**

**Considerations and Determination of the Court.**

115 [19]. **Order 11 Rule 1 of the Civil Procedure Rules** on consolidation of suits provides -

**"Where two or more suits are pending in the same Court in which the same or similar questions of Law or fact are involved, the Court may, either upon the Application of one of the Parties or of its own Motion,** 120 **at its discretion, and upon such terms as may seem fit –**

- **a) Order a consolidation of those Suits; and,** - **b) Direct that further proceedings in any of the suits be stayed until further Order.** - [20]. The rationale for consolidation is to avoid multiplicity of suits resulting in 125 inefficiencies and likely inconsistencies and to the extent rationally possible and expedient streamlining litigation in similar matters without contradiction. - [21]. The commonalities considered in determining whether to consolidate two or more suits including of causes of action and transactions, parties, witnesses, issues and questions of Law, remedies and other matters already cited are 130 pertinent in justifying an order of consolidation - much as the decision to consolidate is clearly entirely at the discretion of the Court. - [22]. Thus, the Court may still decline to consolidate any suit(s) inspite of the material factors and commonalities aligning where it may not be deemed expedient to consolidate or for other reasons including but not limited to 135 technical issues concerning Jurisdiction or Limitation of either suit.

- [23]. Otherwise, the Court is at liberty to direct that the suits either proceed concurrently, sequentially or as the Court may deem appropriate under the Civil Procedure Act including as a test case or other recognized action. - [24]. A review of the common factors of both the first suit and the second suit 140 reveals that both arise from a Lease Agreement for the supply of electricity services and management of power system in the Northern Uganda Service Province dated the 10th October, 2014 between the 1 st Respondent - the Government of Uganda represented by the Rural Electrification Board and the Applicant. The term of the agreement is ten (10) years from its effective 145 date of signature with an option to renew upon mutual consent in writing. The 2nd Respondent is neither Party nor Privy to the Agreement. The second suit was filed within a month and a fortnight of the first suit on the 31st July, 2023 and the 16th June, 2023 respectively with both premised on breach of the same contract cited and the remedies in first suit focused on declarations 150 while the remedies sought in the second suit being primarily for recovery of funds. Certain claims including for damages, interest and costs overlap and could only where deserving only be issued once. - [25]. Clearly and undoubtedly, a review of the Pleadings in relation to the nature of the claim would indicate that both suits before this Courts raise common 155 questions of Law or fact in relation to the same Lease Agreement, its application and rights as well as obligations arising thereunder constituting the same series of transactions pursuant to the contract thereby raising similar questions of Law and fact which can generally be conveniently disposed of simultaneously. Moreover, the Defences filed in the first suit and the second suit on the 4th July, 2023 and the 16 160 th August, 2023 respectively are similar in content and substance in regard to the nature of the claim with the main distinction being that the 2nd Respondent is not a Party to the second suit. This, however, would not in and of itself occasion any injustice. Significantly, the Adjudication is just beginning and is at the stage of pre-trial preliminaries.

- 165 [26]. If that were all, the Court would not find any material differences in the claims and defences raised in any of the respective suits rendering them incompatible for consolidation. The Application would merit grant. - [27]. There is, however, an elephant in the room so to say. A factor of fundamental importance. The Court observes that the Lease Agreement 170 subject of litigation in both the first suit and the second suit includes a Dispute Resolution Mechanism under Article IX at page 21. The applicability of the Dispute Resolution Mechanism is raised as a preliminary matter by the Defendants in both suits. Such an objection touches the core jurisdiction of the Court to proceed with the litigation and the Parties will be required to 175 address it at the earliest possible opportunity which would be a pre-requisite to this Court issuing any Orders under the suit. Accordingly, the Court is constrained and declines to issue the consolidation Order sought by the Applicant in view of these pending jurisdictional considerations highlighted. - [28]. Having carefully given due consideration to the Application with its 180 supporting Affidavit(s) and Annextures, the Submissions on file, the Law applicable and the entire circumstances of this Application, the Court is constrained and declines to grant the Orders sought and hereby dismisses the Application for consolidation of High Court Civil Suit No. 042/2023 and High Court Civil Suit No. 048/2023. - 185 [29]. Each Party shall meet their own costs.

#### **Orders of the Court.**

- [30]. Accordingly, the Court makes the following Orders: - 1. **Miscellaneous Application No. 030/2023** is hereby dismissed. - 2. Each Party shall meet their own costs of the Application. - 190 It is so Ordered.

**Signed and Dated on the 8 th day of November, 2024 at High Court Kitgum Circuit.**

195 **Philip W. Mwaka**

**Acting Judge of the High Court.**

### **Delivery and Attendance.**

This signed and dated Ruling shall on the Directions of the Presiding Judge be delivered to the Parties electronically on **Monday, 11th day of November, 2024 at**

200 **10:00am** by the Deputy Registrar, High Court Kitgum Circuit.

1. Deputy Registrar,

High Court Kitgum Circuit: – Her Worship Suzanne Aisia Musooli.

- 2. Counsel for the Applicant: Mr. Louis Odongo and Mr. Okidi Ladwar Walter. - 3. The Applicant's Representative: Mr. Simon Odoch Ojok, Chairperson. - 205 4. Counsel for the Respondent: Ms. Doris Twesigomwe, SA & Mr. Nyeko Joseph, PSA. - 5. The 2 nd Respondent's Representative: - Absent. - 6. Court Clerk at the Hearing: Mr. Atube Michael.

210 **Philip W. Mwaka**

**Acting Judge of the High Court.**

**High Court Kitgum Circuit.**

**8 th day of November, 2024.**