[2024] UGCommC 382

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) CONSOLIDATED MISCELLANEOUS CAUSE NO. 47 OF 2024 AND** 10 **MISCELLANEOUS CAUSE NO. 60 OF 2024 UMEME LIMITED :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS** 15 **MAKUBUYA WILLIAM T/A POLLA PLAST :::::::::::::::::::::: RESPONDENT AND** 20 **STANBIC BANK UGANDA LIMITED :::::::::::::::::::::::::::::::::: APPLICANT VERSUS**

#### **1. MAKUBUYA WILLIAM T/A POLLA PLAST**

25 **2. UMEME LIMITED ::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

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

## 30 **CONSOLIDATED RULING**

Introduction

These consolidated applications were brought by way of Notice of Motion under **Section 33 of the Judicature Act, Cap. 13 (now Section 37 of Cap. 16)**, **Section 98 of the Civil Procedure Act, Cap. 71 (now Cap.** 35 **282), Order 22 rules 55 and 56, Order 23 rule 7** and **Order 52 rule 8 of the Civil Procedure Rules SI 71-1**, seeking orders that:

1 1. The garnishee order nisi issued on 13th May, 2024 and made absolute on 15th May, 2024 in *Supreme Court Misc. Application*

- 5 *No. 02 of 2024*, in respect of account numbers held in the names of UMEME, is a nullity. - 2. The garnishee order nisi issued on 13th May, 2024 by the Learned Registrar in *Supreme Court Misc. Application No. 02 of 2024* be 10 set aside. - 3. The garnishee order absolute issued by the Learned Registrar in *Supreme Court Misc. Application No. 02 of 2024* on the 15th day of May, 2024 be set aside.

4. Costs of the applications be provided for.

#### Background

In *Misc. Cause No. 47 of 2024;* the background of the application is 20 detailed in the affidavit in support deponed by **Ms. Scovia Kebirungi**, the Applicant's Legal Manager Litigation, and is summarized below:

- 1. That the Respondent instituted *Supreme Court Civil Appeal No. 01 of 2019* wherein judgment was delivered in his favour and the Court granted the following orders; - a) Special damages equivalent to USD 2,519,557 as the proved cost of the machinery subject to a depreciation rate over the number of years the machinery was put to use before being attached and sold. - b) General damages in the sum of UGX 300,000,000/= subject to a deduction of UGX 25,586,300/= being the outstanding electricity bill.

- 5 c) Interest at the rate of 20% per annum on the award of general damages from the date of the Court of Appeal judgment until payment in full. - d) Exemplary damages in the sum of UGX 100,000,000/=. - 2. That the Applicant paid the Respondent UGX 663,691,473/= in satisfaction of the amount awarded as general damages inclusive of interest and exemplary damages. - 3. That the Applicant informed the Respondent that the sum of USD 2,519,557 awarded as special damages was to be subjected to a depreciation rate as ordered by the Court before payment which depreciation rate was yet to be determined. - 4. That the Respondent was unwilling to subject the amount to a depreciation rate and instead instituted garnishee proceedings vide *Supreme Court Misc. Application No. 02 of 2024* seeking to 25 attach the entire amount of USD 2,519,557 without subjecting it to a depreciation rate for the number of years the machines were put to use before they were sold off as ordered by the Court. - 5. That the Learned Registrar issued a garnishee order nisi for the 30 entire amount claimed in *Supreme Court Misc. Application No. 02 of 2024* without consideration of the Supreme Court's order to subject the amount to a depreciation rate. - 35 6. That the Applicant opposed *Supreme Court Misc. Application No. 02 of 2024* and filed an affidavit in reply, informing the Court that the application was premature considering the need to determine a depreciation rate to be subjected to the amount over the number of years the machines were put to use before they were sold before 40 payment.

- 5 7. That the Applicant further informed the Court that it had sought an expert opinion from KPMG, one of the leading audit firms to assist in the determination of a depreciation rate and it had issued a report indicating its findings and advising that according to the Respondent's own audited accounts, he had been depreciating the 10 machines at the rate of 20% per annum. The report subjected the same depreciation rate to the machines and returned a value of USD 138,058 as the amount payable. - 8. That the Respondent objected to the KPMG report and requested that 15 the Court awaits its report on the applicable depreciation rate from the Ministry of Works and Transport. - 9. That subsequently, the garnishee order nisi that had been granted 20 was amended to attach the sum of USD 138,058 as indicated in the KPMG report; the Applicant paid this sum to the Respondent and the garnishee order nisi was vacated by the Learned Registrar. - 10. That after payment of the USD 138,058, the report from the Ministry 25 of Works and Transport was issued, and despite the Applicant's objections regarding its admissibility; the Learned Registrar conducted a full hearing to determine the depreciation to be subjected to the special damages. - 11. That in her ruling on 9th May, 2024, the Learned Registrar disallowed the report by the Ministry of Works and Transport and then erroneously and without basis issued a garnishee order nisi of half of the amount of USD 2,519,557 less the USD 138,058 that had been 35 paid, making it USD 1,190,750 to partially satisfy the decree in *Supreme Court Civil Appeal No. 01 of 2019* pending the

5 production of a final report from the Ministry of Works and Transport.

12. That the garnishee order nisi issued on 13th May, 2024 was irregular for requiring the Applicant and the Garnishee to appear in Court 10 within a period of one day as opposed to seven days as required by the law.

13. That the Learned Registrar made the garnishee order absolute 15 without due consideration of the provisions of the law and the principles governing garnishee proceedings.

In reply, the Respondent opposed the application contending that:

- 1. He was shocked to learn that this Court, without service of the Court process to him and in his absence, issued an administrative interim 20 order against any payment to him by Stanbic Bank (Garnishee) without a proper application in this Court or the Supreme Court orders transferring the record to this Court. That as per the said Court order, it arose from *Misc. Cause No. 1 of 2024*, which application does not exist. - 2. He was also not served with the current application as he only got a copy of the same from the Head of this Division upon complaining about how the administrative interim order was made staying orders of the Supreme Court thereby overruling the Supreme Court orders 30 and decree without according him a right to be heard.

3. This Court has no jurisdiction to set aside a garnishee order issued and made absolute by the Supreme Court through its Registrar in *Misc. Application No. 02 of 2024* arising from the Supreme Court.

- 5 4. The Applicant abused the Court process when it got an interim order without a proper application. - 5. The Applicant filed *Supreme Court Civil Reference No. 02 of 2024* at the Supreme Court therefore, it was wrong to call this application a Misc. Cause yet there is another application for a stay of execution - 10 of a garnishee order nisi arising from *Misc. Application No. 02 of 2024*. - 6. The Applicant also filed a similar application in the Supreme Court vide *Misc. Application No. 11 of 2024* for a stay of execution in 15 *Misc. Application No. 02 of 2024* and *Misc. Application No. 12 of 2024* for an interim order. - 7. It is an abuse of the Court process to file the same matter in two 20 Courts. - 8. At all material times, the Respondent was mindful that the special damages of USD 2,519,557, were subject to a depreciation rate and on 12th February, 2024, he wrote a letter to the Permanent Secretary 25 Ministry of Works and Transport requesting for a professional depreciation rate of industrial machinery arising out of the Supreme Court judgment and the same was served on the Court and the Applicant. - 30 - 9. On 22nd February, 2024, the Respondent instituted *Misc. Application No. 02 of 2024* in the Supreme Court for a garnishee order nisi to enable him to move the Court to have the depreciation rate assessed. - 35 In rejoinder, **Mr. Allan Rwakakooko**, the Applicant's Head of Legal Services, reiterated their previous averments and further contended that:

- 5 1. The Applicant filed the applications to stay the garnishee order nisi in the Supreme Court before the order was made absolute but the same could not be fixed since the Court Administrator was on leave. - 2. Upon further complaining, the most senior Justice of the Court at the time, advised that the issues be directed to this Court since they 10 were related to execution.

- 3. The Applicant made all attempts to effect service on the Respondent. - 15 4. This Court is clothed with the jurisdiction to grant appropriate remedies including interim remedies once satisfied that the conditions warrant so. - 5. The Reference before the Supreme Court relates to the decision of 20 the Learned Registrar and not the application to set aside the garnishee order absolute.

For *Misc. Cause No. 60 of 2024*, the background is contained in the affidavit in support deponed by **Mr. Kafumbe Karim**, the Applicant's Legal Officer, and is summarized below:

- 25 1. That between March and May, 2024, the Learned Registrar of the Supreme Court issued garnishee nisi orders attaching several accounts in the Applicant Bank pursuant to a decree of the Supreme Court in *Civil Appeal No. 1 of 2019*. - 30 2. That the garnishee absolute application was fixed for hearing on 15th May, 2024 only two days later after the issuance of the garnishee order nisi. - 35 3. That on 15th May, 2024, the deponent entered appearance on behalf of the Applicant and informed the Court that the status of the accounts in issue was unknown and requested more time to provide

- 5 the bank statements but was not permitted to say anything more in relation to the accounts. - 4. That on the same day, the Learned Registrar of the Supreme Court issued a garnishee order absolute for payment of USD 1,190,750. - 10 5. That the garnishee order nisi issued on 13th May, 2024 and made absolute on 15th May, 2024 was issued in violation of the law and established principles relating to garnishee proceedings and thus is a nullity and is liable to be set aside. - 6. That the Applicant was not examined as required by law, prior to issuance of the garnishee order absolute.

In an additional affidavit in support deponed by **Mr. Kiiza Nicholas**, the Applicant further explained the current status of the accounts in issue as

20 held by it and contended that the accounts under the garnishee order absolute are not liable to attachment.

In reply, the 1st Respondent Mr. Makubuya William T/A Polla Plast, opposed the above application contending that:

- 1. The application is a non-starter and an abuse of the Court process. - 2. The Applicant filed a similar application in the Supreme Court vide *Civil Application No. 01 of 2024* seeking the same reliefs.

30 3. The orders of the High Court Judge have no legal consequence as a lower Court has never looked at or overturned the order of a superior Court.

4. The garnishee order nisi issued by the Supreme Court and made 35 absolute can never be set aside or stayed by an order of the High Court.

5 5. The decree nisi and absolute were issued in accordance with the law and the allegation by the Applicant is an indication of their connivance with the judgment debtor to deny him the fruits of the judgment.

In rejoinder, the Applicant through an affidavit deponed by **Mr. Kafumbe** 10 **Karim**, reiterated its previous averments and further contended that:

- 1. The Applicant being aggrieved with garnishee orders nisi and absolute filed this application to have the same set aside by this Court. - 15 2. The Applicant filed the applications before the Supreme Court and this Court out of prudence. - 3. All issues arising from the execution of the decree in *Civil Appeal* 20 *No. 01 of 2019* were referred to this Court. - 4. It is just and equitable that the garnishee orders nisi and absolute issued on 13th May, 2024 and 15th May, 2024 respectively, be set aside.

## 25 Representation

In *Misc. Cause No. 47 of 2024*, the Applicant was represented by **M/s Shonubi, Musoke & Co. Advocates** while the Respondent was selfrepresented. In *Misc. Cause No. 60 of 2024*, the Applicant was represented by **M/s S&L Advocates** while the 1st Respondent was self-30 represented and the 2nd Respondent never entered appearance.

The parties were directed to file their written submissions which they did and the same have been considered by this Court.

#### 5 Issues for Determination

- 1. Whether there is sufficient cause to set aside the garnishee order nisi issued by the Learned Registrar at the Supreme Court in *Misc. Application No. 02 of 2024*? - 10 2. Whether there is sufficient cause to set aside the garnishee order absolute issued by the Learned Registrar at the Supreme Court on 15th May, 2024 in *Misc. Application No. 02 of 2024*? - 15 3. What remedies are available to the parties?

In his affidavits in reply, and submissions, the Respondent Mr. Makubuya William T/A Polla Plast in *Misc. Cause No. 47 of 2024* and as the 1st Respondent in *Misc. Cause No. 60 of 2024* raised the following preliminary objections;

- 20 i. That this Court has no jurisdiction to determine these applications. - ii. That these applications are an abuse of the Court process.

# **Order 6 rule 28 of the Civil Procedure Rules**, stipulates that:

*"Any party shall be entitled to raise by his or her pleadings any point of law, and any point so raised shall be disposed of by the Court at or* 25 *after the hearing; except that by consent of the parties, or by order of the Court on the application of either party, a point of law may be set down for hearing and disposed of at any time before the hearing."*

The Supreme Court in the case of *Uganda Telecom Ltd Vs ZTE Corporation SCCA No. 3 of 2017*, held that a trial Court has discretion 30 to dispose of a preliminary point either at or after the hearing. However,

5 that the exercise of this discretion is dependent on the circumstances of each case.

It is therefore trite that where there is a preliminary objection capable of disposing of the matter in issue, it is judicious to determine the objection before embarking on the merits of the case.

- 10 Guided by the above authorities, and given the nature of the preliminary objections raised, I shall proceed with the determination of the objections so raised. - i. That this Court lacks the jurisdiction to set aside an order issued by the Supreme Court.

# 15 1st Respondent's submissions

Appearing as the Respondent in *Misc. Cause No. 47 of 2024* and the 1st Respondent in *Misc. Cause No. 60 of 2024*, Mr. Makubuya William T/A Polla Plast submitted that as was held in the case of *Desai Vs Warsama [1967] E. A 351*, jurisdiction is a creature of statute and no Court can 20 confer it upon itself and that any decision issued by a Court without jurisdiction is a nullity.

Mr. Makubuya further submitted that **Order 50 rule 8 of the Civil Procedure Rules** states that any person aggrieved by an order of the Registrar may appeal from the order to the High Court. That this means 25 that the decision made by a Registrar of the High Court is a decision by the High Court itself and therefore the orders made by the Registrar of the Supreme Court are orders made by the Supreme Court itself and the lower Court cannot set them aside because doing so would be setting aside the orders of the Supreme Court not mere orders of the Registrar of the

- 5 Supreme Court. Mr. Makubuya then referred to the case of *Ssonko Metal Craft Ltd Vs Sarana Ltd Revision Application No .34 of 2019* where the Court held that a decree absolute issued by the Registrar of the High Court cannot be set aside by a lower Court and the case of *Magomu Hussein Kahandi Vs The Electoral Commission & Another HCCA No.* - 10 *78 of 2016* wherein it was held that a lower Court cannot overrule a High Court decision.

That in the case at hand, the Applicants aggrieved by the garnishee orders nisi and absolute issued by the Registrar of the Supreme Court, filed applications before this Court to have the same set aside yet no provision 15 of the law empowers this Court with the jurisdiction to overrule the decisions of the Supreme Court. In conclusion, Mr. Makubuya contended that the Applicants ought to have filed a reference to a single Justice of the Supreme Court.

## Applicants' submissions

- 20 Counsel for the Applicant in *Misc. Cause No. 47 of 2024* submitted that this Court is vested with unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by the Constitution as per **Section 14 of the Judicature Act.** That the nonprovision of the procedure for execution of the decree in both the Court of - 25 Appeal and Supreme Court is informed by **Section 50(2) of the Judicature Act** which provides that the orders of the Supreme Court shall be executed and enforced as if they were an order of the High Court. Also, that **Section 30 of the Civil Procedure Act** provides that a decree may be executed by either the Court which passed the decree or the Court to 30 which the decree is sent for execution as explained under **Section 29** thereof. That **Section 34(1) of the Civil Procedure Act** also requires that

5 any questions arising between the parties to the suit in which a decree was passed and relating to the execution of the decree are to be determined by the Court executing the decree.

That subject to **Sections 29** and **30 of the Civil Procedure Act**, the High Court as a Court of first instance, is the Court vested with the jurisdiction 10 to execute the decree passed in *Makubuya Enock William T/A Polla Plast Vs Umeme Limited Civil Appeal No. 01 of 2019*. Counsel then distinguished the case of *Ssonko Metal Craft Ltd Vs Sarana Ltd (supra)* from the current application.

In conclusion, Counsel submitted that this Court is clothed with the 15 jurisdiction to determine the application and that, in the alternative, if this Court, finds that it is not clothed with the jurisdiction to determine this application, it should transfer the matter to the Court with such jurisdiction and further extend the interim order until further directions are issued by the Supreme Court.

- 20 Counsel for the Applicant in *Misc. Cause No. 60 of 2024* contended that this is a Court of first instance and it is empowered to hear the dispute therefore, this is the right forum for this application. Counsel relied on the case of *Shell (U) Limited & 9 Others Vs Muwema & Mugerwa Advocates & Another SCCA No. 2 of 2013.* He further submitted that 25 the decree was transferred to this Court for execution and contended that the case of *Ssonko Metal Craft Ltd Vs Sarana Ltd HCMA No. 034 of 2019* is misplaced. - ii. That the applications are an abuse of the Court process as there are already similar applications that were filed in the Supreme

30 Court.

#### 5 1st Respondent's submissions

Mr. Makubuya contended that, as per **paragraph 27** of its affidavit in support, UMEME Limited avers that it filed a similar application vide *Supreme Court Civil Reference No. 2 of 2024* as per annexure **"I"** attached to the affidavit in support of *Misc. Cause No. 47 of 2024,* yet 10 the same is not in existence. Further, that UMEME Limited filed *Misc. Applications No. 11 and 12 of 2024*, which were fixed for hearing on 11th July, 2024.

That when the parties appeared in Court on 11th July, 2024, the trial Justice, **Hon. Mike Chibita, JSC** advised that all the pending applications 15 were unnecessary as the lasting solution was for both parties to file their valuation reports regarding the depreciation rate, the supporting documents and submissions which advice was adhered to and the parties are waiting for the Ruling that is to be delivered on notice.

Regarding Stanbic Bank (U) Limited; Mr. Makubuya contended that it filed

20 *Supreme Court Civil Application No. 01 of 2024* wherein the Bank is seeking the same orders being sought in *Misc. Cause No. 60 of 2024* before this Court. That in the case of *Male K. Mabirizi Vs Attorney General HCMA No. 89 of 2022*, the Court held that since the Applicant had taken two concurrent processes in two different Courts, in the absence 25 of any enabling law, such conduct amounts to forum shopping and would tantamount to abuse of the Court process.

In conclusion, Mr. Makubuya submitted that the applications pending before this Court are an abuse of the Court process and violate **Section 6 of the Civil Procedure Act**. That since the Supreme Court is already 30 proceeding with the applications by the Applicants challenging the

5 decision of the Registrar of the Supreme Court, then the Applicants filing these applications before this Court amounts to an abuse of the Court process.

#### Applicants' submissions

Counsel for the Applicant in *Misc. Cause No. 47 of 2024* submitted that 10 UMEME Limited filed *Supreme Court Civil Reference No. 02 of 2024* by way of a letter and that this was prior to the grant of the garnishee order absolute. Furthermore, that *Misc. Applications No. 11 and 12 of 2024* are applications seeking stay and interim stay of execution which were fixed and brought to the attention of the Registrar prior to the grant of the 15 garnishee order absolute. That the current application seeks to set aside the garnishee orders nisi and absolute that were issued by the Learned Registrar and not stay the same.

That indeed the parties have appeared before **Hon. Justice Mike Chibita**, **JSC** on various occasions and His Lordship has made efforts to mediate

20 the matter between the parties but that the applications filed by UMEME Limited have not been heard or considered by His Lordship.

Counsel for the Applicant in *Misc. Cause No. 60 of 2024* defined abuse of Court process as per the case of *Uganda Land Commission & Another Vs James Mark Kamoga & Another, SCCA No. 08 of 2004* to mean one 25 that involves the use of the process for an improper purpose.

That however, in the instant case, the process of seeking relief from the Supreme Court and this Court is for the proper purpose of a comprehensive resolution of the dispute. That the genesis of these 30 exceptional circumstances is the transfer of all issues arising from the execution of the decree in this matter to this Court as shown under

5 **paragraph 6** of the affidavit in rejoinder and that therefore, this is not an abuse of the Court process.

Counsel further submitted that in the alternative, this Court under **Section 98 of the Civil Procedure Act**, has powers to stay the 10 proceedings pending the outcome of the dispute between the Respondents in the Supreme Court, including the ongoing mediation.

#### Analysis and Determination

Regarding whether this Court has jurisdiction to determine these 15 applications; the Applicants relied on **Order 23 rule 7** and **Order 50 rule 8 of the Civil Procedure Rules**. **Order 23 rule 7 of the Civil Procedure Rules** provides that:

*"Payment made by or execution levied upon the garnishee under any such proceedings as aforesaid shall be a valid discharge to him* 20 *or her as against the judgment debtor to the amount paid or levied, although such proceeding or order may be set aside or the decree reversed."*

## **Order 50 rule 8 of the Civil Procedure Rules** stipulates that;

*"Any person aggrieved by an order of a Registrar may appeal from* 25 *the order to the High Court. The appeal shall be by motion on notice."*

I have carefully perused the Court record and the pleadings by both parties and I, shall first consider the background of these applications; Mr. Makubuya William t/a Polla Plast, the Respondent in *Misc. Cause No. 47 of 2024* and the 1st Respondent in *Misc. Cause No. 60 of 2024*, 30 purchased plastic manufacturing machines from BMK Industries Limited and commenced business on the premises of his landlord BMK Industries - 5 Limited. This was between March and November, 2008. The Respondent and his landlord agreed that the Respondent pays his electricity bills on the account of BMK Industries Limited. Later on, the Respondent caused a change of the account names into the names of his business Polla Plast but was surprised to be given an outstanding bill of electricity of UGX 10 155,183,658/= by UMEME Limited, (the Applicant in *Misc. Cause No .47 of 2024* and 2nd Respondent in *Misc. Cause No. 60 of 2024*). Subsequently, the Respondent signed a deed of acknowledgement of the debt in which he undertook to settle the electricity bill and reconnected the electricity, albeit illegally. This came to the notice of UMEME Limited 15 and the electricity was disconnected, a charge for causing energy loss and - fines were imposed on the Respondent. Due to the disconnection of the power supply, the Respondent suffered financial constraints and could not keep up with all his financial obligations including paying rent to his landlord and as a result, his landlord attached his machines which were 20 subsequently sold off under a Court order, resulting into the collapse of the Respondent's business.

It is against the above background that on 6th November, 2012 the Respondent instituted *Civil Suit No. 534 of 2012* against UMEME Limited, which was held in favour of the Respondent. Aggrieved by the said 25 decision, UMEME Limited appealed to the Court of Appeal vide *Civil Appeal No. 216 of 2015* wherein the appeal was dismissed and the judgment of the trial Court upheld. The Court of Appeal issued further orders concerning general damages and interest. Aggrieved by some of the aforementioned remedies, the Respondent appealed to the Supreme Court 30 vide *Civil Appeal No. 1 of 2019* which succeeded. On 22nd February,

17 2024, in execution of the decree of the Supreme Court, the Respondent vide *Supreme Court Misc. Application No. 02 of 2024*, sought

- 5 garnishee orders against Stanbic Bank (U) Ltd (the Applicant in *Misc. Cause No. 60 of 2024*). On 7th March, 2024, a garnishee order nisi was granted by the Learned Registrar, Her Worship Nalukwago Harriet in the presence of both parties. This was amended on 13th May, 2024. On 15th May, 2024, the Learned Registrar issued a garnishee order absolute. - 10 Aggrieved by the said order, UMEME Limited filed *Supreme Court Civil Reference No. 02 of 2024* vide a letter dated 14th May, 2024, challenging the orders issued by the Learned Registrar vide *Supreme Court Misc. Application No. 02 of 2024*. Subsequently UMEME Limited also filed *Supreme Court Misc. Application No. 11 of 2024* and *Supreme Court* 15 *Misc. Application No. 12 of 2024* seeking stay and interim stay of - execution of the orders in *Supreme Court Misc. Application No. 02 of 2023* pending the determination of *Supreme Court Civil Reference No. 02 of 2024*. - On the other hand, Stanbic Bank (U) Limited aggrieved with the 20 aforementioned orders, also filed *Supreme Court Civil Application No. 01 of 2024* seeking the same orders being sought in *Misc. Cause No. 60 of 2023* before this Court that; the garnishee Order nisi issued on 13th May, 2024 and made absolute on 15th May, 2024 in respect of account numbers; 9030013670367, 9030008293650, 9030008774470, 25 9030008795206, 9030005662752, 9030005662930 and 9030008019826 held in the Applicant Bank is a nullity, consequently, the garnishee order absolute dated 15th May, 2024 be set aside and costs of the application be provided for.

As portrayed above, the applications before me seek to set aside a 30 garnishee order nisi and a garnishee order absolute issued by the Learned Registrar of the Supreme Court in *Misc. Application No. 02 of 2024,*

- 5 arising from the execution of a decree in *Supreme Court Civil Appeal No. 1 of 2019*. The Applicants submitted that **Hon. Justice Christopher Madrama Izama JSC**, on 15th and 16th May, 2024 in response to questions by M/s Shonubi, Musoke & Co. Advocates for administrative intervention in the Learned Registrar's decisions in *Misc. Application No. 02 of 202***4**, 10 advised that the proceedings be handled by the Court of first instance under **Sections 29(a) and 34 of the Civil Procedure Act** and directed that the file be transferred to this Court. This is reflected in **paragraph 6** - of the affidavit in rejoinder and annexure "**A**" thereto in *Misc. Cause No.60 of 2024* and **paragraphs 28 and 29**, annexures **"J"** and **K2"** attached to 15 the affidavit in support of *Misc. Cause No. 47 of 2024*.

However, as per the record in this Court, the directives of His Lordship were not fully complied with. The Supreme Court files were never transferred to this Court and this was also confirmed by Counsel for UMEME Limited in his written submissions in *Misc. Cause No. 47 of* 20 *2024* on page 8 wherein Counsel submitted that the Learned Registrar of the Supreme Court ignored the directive to transfer the files to this Court. Further, the applications and the reference were also not withdrawn by the Applicants from the Supreme Court.

Mr. Makubuya further contends that the Applicants filed similar 25 applications before the Supreme Court and this Court which violates the doctrine of *lis pendens* and subsequently an abuse of the Court process.

The phrase "*lis pendens"* is defined by the **Black's Law Dictionary 11th Edition** to mean "a pending suit". The *lis pendens* rule is embedded under **Section 6 of the Civil Procedure Act** which stipulates that:

5 "*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* 10 *pending in the same or any other Court having jurisdiction in Uganda to grant the relief claimed*."

Given the above, in establishing whether a matter violates the doctrine of *lis pendens*, it has to be established that, the matter in issue in the present matter is also directly and substantially in issue in a previously instituted 15 suit or proceeding, secondly that the previously instituted suit or proceeding is between the same parties and lastly, that the suit or proceeding is pending in the same or any other Court having jurisdiction to grant the reliefs being sought. (See: *Springs International Hotel Ltd Vs Hotel Diplomate Ltd & Another HCCS No. 227 2011*, *Nakasero* 20 *Market Sitting Vendors & Traders Ltd Vs Kampala Capital City Authority & Another HCMC No. 348 of 2020* and *Jadva Karsan Vs Harnam Singh Bhogal [1953] 20 EACA 74*).

In the case of *Springs International Hotel Ltd Vs Hotel Diplomat Ltd & Another (supra),* **Hon. Justice Bashaija K. Andrew** stated that:

25 "*It is my considered opinion that one such instance of potential abuse lies in the filing of multiplicity of suits in Court, such as the Plaintiff did in the instant case*."

In the instant matter; I have perused the record and observed that under **paragraph 27** and annexure **"I"** of the affidavit in support of *Misc. Cause* 30 *No. 47 of 2024,* UMEME Limited acknowledges the fact that it filed

- 5 *Supreme Court Civil Reference No. 02 of 2024* on 15th May, 2024 seeking to challenge the orders issued by the Learned Registrar of the Supreme Court in *Supreme Court Misc. Application No. 02 of 2024*. Also, as per **paragraph 1** of the affidavit in reply and annexure **"A"** thereto as well as **paragraph 10** of the affidavit in rejoinder in *Misc. Cause No.* - 10 *60 of 2024*, Stanbic Bank (U) Limited acknowledges having filed applications in the Supreme Court and this Court. In both applications, Stanbic Bank (U) Ltd seeks orders that the garnishee order nisi is a nullity and that the garnishee order absolute issued by the Learned Registrar be set aside. The applications are challenging the garnishee orders by the - 15 Registrar of the Supreme Court. The orders being sought by UMEME Limited and Stanbic Bank (U) Limited, the Applicants herein, are the same as those sought in *Supreme Court Civil Reference No .02 of 2024* and *Supreme Court Civil Application No. 01 of 2024.*

Therefore, it is my considered view that the matters in issue in the present 20 applications are directly and substantially in issue in *Supreme Court Civil Reference No. 02 of 2024* and *Supreme Court Civil Application No. 01 of 2024*. This is in contravention of the *lis pendens* rule.

Also, the Applicants herein do not dispute the fact that both the *Supreme Court Civil Reference No. 02 of 2024* and the applications arising 25 therein as well as *Supreme Court Civil Application No. 01 of 2024* are pending before the Supreme Court and further that efforts are ongoing in the Supreme Court to try and resolve the matter amicably.

In light of the above and the fact that the matters in issue in this Court are directly and substantially in issue in the Supreme Court; to avoid 30 issuing contradictory decisions and encouraging the existence of multiple

5 proceedings, it is in the interest of justice that the matters in issue are determined by the Supreme Court.

In the premises, for the above reasons and pursuant to **Section 37 of the Judicature Act** and **Section 98 of the Civil Procedure Act**; *Misc. Cause No. 47 of 2024* and *Misc. Cause No. 60 of 2024* are hereby dismissed. 10 No order is made as to costs.

I so order.

Dated, signed and delivered electronically via ECCMIS this **20th** day of

**December**, **2024.**

Patience T. E. Rubagumya **JUDGE** 20/12/2024

15