[2024] UGHC 656

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KASESE**

**HCT-25-LD-CS-0047-2024**

**(FORMERLY FORT PORTAL HCT-01-LD-CS-0022-2023)**

**THEMBO DAVID KABAU::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF**

**VERSUS**

**MUBINGWA ZEPHER:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT**

**BEFORE HON. JUSTICE DAVID L. MAKUMBI**

**RULING**

**REPRESENTATION:**

Plaintiff represented by M/S JByamukama & Co. Advocates

Defendant was represented by M/S Bagyenda & Co. Advocates

**BACKGROUND:**

This is a ruling on a preliminary point of law raised in this civil suit on the grounds that this suit is barred by the doctrine of *lis pendens* and constitutes an abuse of court process.

The facts constituting the suit in brief are that the Plaintiff brought a claim against the Defendant seeking a declaration that the Defendant is in breach of the sale agreement dated 19th April 2017 for the suit property comprised in Freehold Register Volume HQT123, Folio 23 located at Plot 13 Circular Road at Kisanga A Cell, Kasese Municipality. The Plaintiff seeks further orders for specific performance of the agreement, vacant possession, transfer of title, general damages, interest and costs. In the alternative, the Plaintiff seeks recovery of a sum of UGX 122,899,000 as special damages along with general damages, interest and costs of the suit arising from breach of the agreement.

The Defendant subsequently filed a Written Statement of Defence wherein he raised a preliminary point of law and pleaded that there was a pending suit between the Plaintiff and the Defendant over the subject matter of this suit and the same is pending fixture by the Plaintiff for hearing and final determination per a decree of the Court of Appeal.

The Plaintiff argued in response to the preliminary objection that the Defendant misconstrued the judgment of the Court of Appeal and that there was no pending suit concerning this matter.

**ANALYSIS:**

Counsel for the Defendant argued that this suit contravenes Section 6 of the Civil Procedure Act and specifically made reference to the decree of the Court of Appeal in **Mubingwa Zepher v Thembo David Kabau - Civil Appeal No. 190 of 2019**. Counsel argued that by that decree the Court of Appeal ordered that the case file be remitted to the relevant High Court Circuit covering Kasese District for a trial of the dispute on the merits.

Counsel for the Defendant further contended that instead of causing the relevant case file to be remitted to this circuit for determination, the Plaintiff had instead opted to file a fresh suit in the same cause of action. Counsel argued that this present suit violated Section 6 of the Civil Procedure Act and could not be allowed to stand. Counsel further cited the authorities of **Springs International Hotel Ltd v Hotel Diplomate Ltd and Bonny M. Katatumba – HCCS No. 227 of 2011** and **AG v James Mark Kamoga and Another – SCCA No. 08 of 2004** in support of his arguments.

Counsel for the Plaintiff submitted in response and explained the background of the Court of Appeal Decree as follows. The Plaintiff instituted Kasese Chief Magistrate Miscellaneous Application No. 8 of 2018 seeking orders for eviction, vacant possession and delivery of title for the suit property in this present suit. The Chief Magistrate Court granted this application. The Defendant subsequently filed an application for review before the Chief Magistrate which application was dismissed. The Defendant then filed an appeal before the High Court which appeal was also dismissed. The Plaintiff then filed the above-mentioned appeal before the Court of Appeal.

According to Counsel for the Plaintiff the Court of Appeal set aside the judgment and orders of the High Court on the basis that the Chief Magistrate Court lacked pecuniary jurisdiction to handle the suit. Counsel then argued that the issue of a pending suit was a disputed fact and could not therefore be handled as a preliminary point. Counsel further argued that the burden of proving that there was pending suit before this court was upon the Defendant and that this Court had the necessary jurisdiction under Section 33 of the Judicature Act to handle this suit.

Counsel for the Plaintiff also invited this court to consider the exact wording of the Court of Appeal and reiterated that there was no pending suit.

Counsel for the Defendant reiterated in rejoinder that by the wording of the Court of Appeal decision the requirement was for the case file in issue before the Court of Appeal to be remitted to the relevant High Court circuit covering Kasese.

In considering the preliminary objection and the submissions of both Counsel I find that the issue for this court to resolve is whether by the Court of Appeal intended for the Appellant/Plaintiff to cause the court file that was in issue before this Court or for the Plaintiff to file a fresh suit.

I have had the benefit of looking at the decision of the Learned Lady Justice Elizabeth of the Court of Appeal as she then was. I noted that the Learned Lady Justice did in fact specifically state at Page 22 of her judgment that,

“*The manner of resolution of Ground 1 means that the Chief Magistrate Court of Kasese at Kasese did not have the jurisdiction to entertain the respondent’s suit KAS-00-CV-MA-LD-No. 05 of 2018, and to grant the orders as it did. Accordingly, the orders arising out of the impugned suit, are a nullity for having been granted by a Court without jurisdiction and I would set them aside. …*

*Nonetheless, I note that the dispute between the parties concerning the breach of the contract for the sale of the suit property ought to be heard on its merits, and thus in the interests of justice, I would order that the case file be remitted to the relevant High Court Circuit covering Kasese District, for the trial of the dispute on its merits.*

*In conclusion, I would allow the appeal, set aside the judgment and orders of the learned High Court Judge on appeal, and substitute the following declarations and orders:*

1. *The learned Chief Magistrate who handled the initial suit filed by the respondent vide KAS-00-CV-MA-LD-LD No. 05 of 2018 had no jurisdiction to handle the suit given that the value of the subject matter exceeded the pecuniary jurisdiction of a Chief Magistrate’s Court. Therefore, all orders granted by the learned Chief Magistrate arising out of the said suit are a nullity and I would set them aside.* 2. *However, considering that the dispute between the parties concerning breach of the contract for the sale of the suit land needs to be heard on its merits, I would in the interests of justice, order that the case file in the present matter be remitted to the relevant High Court circuit covering Kasese district, for a trial of the dispute on the merits.”*

The context of the decision above flowed from Ground 1 of the appeal to the Court of Appeal by which the Appellant contended that the learned Judge of the High Court erred when he condoned an illegality to wit, lack of pecuniary jurisdiction. Furthermore, the background to the appeal clearly refers to the enforcement of the sale of the same suit property as described in this suit.

In light of the above, a simple construction of the words used by the learned Lady Justice of the Court of Appeal leaves no doubt in my mind that the orders of the Court were for a remitting of the same file as had been handled in appeal before the High Court for purposes of retrial. It is clear that the Court of Appeal having determined that the Chief Magistrate Court could not handle the matter on retrial due to lack of pecuniary jurisdiction ordered that a retrial of the same take place at the High Court. The wording used was “***I … order that the case file be remitted to the relevant High Court Circuit***”.

It is clear from the wording above that the Court did not intend for a new file to be opened. It was sending the High Court file back for trial on the merits as had been presented, albeit wrongly, to the Chief Magistrate Court. I therefore agree with Counsel for the Defendant that the intention of the Court of Appeal was for the same matter as was described in the background to the decision of the Court of Appeal to be reverted to the High Court for determination.

This therefore leaves the question of whether by presenting this present suit before this court, the Plaintiff contravened Section 6 of the Civil Procedure Act. Section 6 provides that,

*“No court shall proceed with the 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 proceeding between the same parties, or between parties under whom they 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 the Plaintiff argued that the Defendant had not proved that there was a pending suit and that in order to prove it he would need to argue facts and it was therefore matter best reserved for trial. Counsel for the Plaintiff placed reliance upon the case of **Mukisa Biscuit Manufucturing Co. Ltd v West End Distributors Ltd (1969) 1 EA 696.** In that case Sir Charles Newbold JA held at Page 701 that,

*“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”*

On the basis of the case above, I find by the pleadings in this matter that it is apparent that there is in fact a pending case based on the facts pleaded in the matter. The fact of the Court of Appeal order make it clear that the Court of Appeal, having quashed the orders of the Chief Magistrate, intended that the High Court retry the matter that was wrongly handled by the Chief Magistrate Court. This fact alone without leading evidence raised a point of law in the pleadings by which I agree with the defendant that this suit was improperly filed before this court in contravention of the orders of the Court of Appeal and Section 6 of the Civil Procedure Act.

The matter previously handled by the Chief Magistrate is clearly still a pending matter by virtue of the orders of the Court of Appeal.

In arguing against the preliminary objection Counsel for the Plaintiff paradoxically made reference to Section 33 of the Judicature Act as the justification for this court entertaining this suit. Section 33 provides that,

*“The High Court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided.”*

I consider Counsel for the Plaintiff’s reference to the above as paradoxical because the provision in question refers to matters PROPERLY brought before the High Court and furthermore it refers to avoidance of multiplicities of legal proceedings.

The subject matter in this suit is exactly the same as in a matter that was brought before the Chief Magistrate Court in Kasese by way of Notice of Motion. The Court of Appeal determined that that matter needed to be retried on its merits. It therefore follows that the Plaintiff in this matter needs to lay the same matter as was laid before the Chief Magistrate Court by Notice of Motion before this Court. In laying the same before this Court the record should clearly show the history of how it arises before this Court and reflect the proper history and background. This will sort out both the properness requirement of Section 33 of the Judicature Act resolve the question of multiplicity of proceedings discouraged thereunder as well.

In the case of **Gorrepati v Grant Thornton Management and Another – High Court Commercial Division MA 0418 of 2023**, Justice Stephen Mubiru held concerning Section 6 of the Civil Procedure Act that,

*“This doctrine of lis pendens essentially aims at (i) avoiding endless litigation, (ii) protecting either party to the litigation against the act of the other, (iii) avoiding abuse of legal process. This principle is intended to safeguard the parties to litigation against transfers by their opponents, so as to affect the rights of any other party thereto under any decree or order which may be made therein. It is also intended to strike at the attempts by parties to a legal proceeding to bypass the jurisdiction of a Court, before which a dispute on interests in immovable property is pending, by private dealings which may remove the subject matter of litigation from the ambit of the court’s power to decide a pending dispute or frustrate its decree.”*

Going by the decision above, I note that by bringing this matter before this court in this manner, the Plaintiff essentially renders the orders of the Court of Appeal in vain thereby abusing court process. There is also the risk that by preparing a new suit the Plaintiff may deviate from previous pleadings on which the Court of Appeal based its decision thereby bypassing jurisdiction and application of the orders of Court of Appeal.

I therefore uphold the preliminary objection to the extent that this suit is similar to the matter filed by the Plaintiff by way of Notice of Motion in Chief Magistrate Court KAS-00-CV-MA-LD-LD No. 05 of 2018 which pending matter the Court of Appeal ordered for retrial by this Court. It is therefore brought contrary to Section 6 of the Civil Procedure Act.

**ORDERS:**

1. This suit is hereby dismissed for breaching Section 6 of the Civil Procedure Act and the orders of the Court of Appeal in Civil Appeal No. 190 of 2019. 2. In the event that the Plaintiff still wishes to pursue this matter, he should do so in accordance with the orders of Court of Appeal in Civil Appeal No. 190 of 2019 and reinstate the suit from the Chief Magistrate Court in similar terms before the High Court clearly referencing the history thereof. 3. Costs in this matter are awarded to the Defendant.

So ordered.

**David S. L. Makumbi**

**JUDGE**

**25/06/24**