Buildnet Construction Materials and Hardware Limited v Kalule and Another (Miscellaneous Application No. 679 of 2022) [2022] UGHCLD 140 (12 July 2022)

Full Case Text

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

### (LAND DIVISION)

## MISCELLANEOUS APPLICATION NO.679 OF 2022

(Arising out of Civil Suit No.363 of 2021 & Civil Suit No.467 of 2021)

# **BUILDNET CONSTRUCTION MATERIALS & HARDWARE LTD::::::::::::::::::::::::::::::::::::**

#### **VERSUS**

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#### 1. KALULE JAPHER

2. MUWONGE FAUZIA:::::::::::::::::::::::::::::::::::

#### Before: Justice Alexandra Nkonge Rugadya.

#### RULING.

#### Introduction: 15

This is an application by chamber summons under Section 98 of the Civil Procedure Act cap. 71 and Order 11 rules 1(a) & 2 of the Civil Procedure Rules SI 71-1 seeking orders that High Court Civil Suit No.363 of 2021 Fauzia Muwonge -vs- Kalule Japher & 2 Others (Land Division) and High Court Civil Suit No. 467 of 2021 Buildnet Construction Materials

& Hardware Ltd -vs- Kalule Japher (Commercial Division) be consolidated, and costs of the 20 application be provided for.

#### Grounds of the application:

The grounds in support of the application are contained in the affidavit in support of Dr. Ibrahim Semaganda, the applicant's Managing Director. He depones that while the 2nd respondent on 20th April, 2021 filed Civil Suit No.363 of 2021 against the applicant and the 1st respondent seeking among others: declaratory orders nullifying the applicant's purchase of property comprised in Kyadondo Block 244 plot 1774 at Muyenga.

On 4th August, 2021 the applicant (hereinafter referred to as the company) also filed **Civil Suit** 467 of 2021 Buildnet Construction Materials & Hardware Ltd vs Japher Kalule seeking

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among other orders raising issues of misrepresentation, breach of contract and recovery of **Ugx**. 1,640,450,000/= (Uganda Shillings One billion six hundred forty million four hundred **fifty million only)** against the $1$ st respondent.

The plaintiff company upon reading the pleadings in both suits contended that both suits raise similar questions of law and fact; the subject matter and the documents sought to be relied on $\mathsf{S}$ the same and therefore the determination of one suit will automatically affect the other. Accordingly that the consolidation of the two suits will avoid multiplicity of suits and no prejudice will be suffered by the respondents.

Ms. Fauzia Muwonge, the 2nd respondent however opposed the application through affidavit in reply deponed by Counsel Specioza Tayebwa, an advocate authorized to depone the affidavit. She 10 refuted the claim that that Civil Suit No. 363 of 2021 and Civil Suit No. 467 of 2021 are based on the same cause of action.

According to her, the applicant company has no actionable claim against Fauzia Muwonge in respect of the underlying sale agreement upon which the company suit is premised, since she was not a party to the said agreement.

That consolidation of the two suits will not only cause a misjoinder of the parties, but also force her to litigate on a sale agreement that she has no interest in. That the two suits do not involve the same or similar questions of law or fact as they seek conflicting orders and the determination of Muwonge's suit will not in any way affect that of the company, in which he seeks recovery of

monies purportedly paid under the agreement, and in respect of which Muwonge was not party 20 to.

She further averred that allowing this application at this stage will prejudice Muwonge's suit as any issue regarding service of the applicant with court process in High Court Civil Suit No. 467 of 2021 shall cause undue delay in the determination of Muwonge's suit which is already set for hearing and determination by this court.

That the application is premature, and legally misconceived as it has been lodged before Japher Kalule, the 1st respondent has been served with summons to file a defence in **Civil Suit No.467** of 2021. There is no indication that he was ever served with the instant application or that any effort was taken to effect service of court process on him which would explain why he did not file

30 an affidavit in reply.

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The applicant company filed an affidavit in rejoinder to the affidavit in reply contending that the mere fact that Muwonge was not a party to HCCS No. 467 of 2021 or that the applicant company has no actionable claim against her would not bar both suits from being consolidated.

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It is sufficicnt that thc undcrlying subjcct matlcr in both suits is thc samc and that thc avcrmcnt that thc two suits scck cliffcrcnt ordcrs is misconccivcd sincc thc ordcrs sought by thc applicant in Clnlt Suit No,467 oJ 2O27 arc conscqucntial to thc court finding on thc validity of the sale of thc suit propcrty and would not dcfcat thc rcmcdics sought by Muwongc, the 2nd respondent.

#### 5 Represe'rtatlo4:

Thc applicant was rcprcscntcd by M/s Twtnusl/rlte Kabega & co. Ad,uocates whilc the 2"d rcspondcnt was rcprcscntod l>y M/s H & G Adaocates.'l'hc 1'' rcspondcnt, Kalule Japhcr was not rcprcscntcd and it is also apparcnt that hr: had not bccn scrved with this application.

From thc rccord, his last known counscl was liobcrt l"riday Kagoro of III/S llluuema & Co. Ad,uocqtes. On 2n,r August, 2O2l Lhc said firm had filcd his writtcn statcmcnt of dcfcnce, as the 3.r dcfendant in Ciuil suit No. 363 oJ 2021.'l'hc suit had bccn filcd by thc 2n'r rcspondcnt, I.auzia Muwongc. On l5rh Octobcr, 2O2l lhc samc firm had filcd his Schcduling notcs for that suit. 10

Whcn this mattcr camc up ftrr tria) on 6rr' May, 2022, Ms. Aritha Uwcra who was holding bricf for counscl Macl)usman Kabt:ga from M/s T\tmuslt ^e Ko'bega & Co. Aduocates informed court that Ciutl sult .lvo. 467 oJ 2O27 which had bccn lilcd in thc Commcrcial l)ivision by thc applicant company against Kalulc had ncvcr takcn off. 15

Counscl claimcd that thcy had cnrlcavorcd to scrvc Kalulc with thc summons for Clull Sr.it IVo. 467 oJ 2O21, through his counscl, M/s ltruuemq & Co. Advocqtes. Ilowcvcr that I''riday Robcrt Kagoro (who had br-'cn attcnding somc prcvious hcarings f<rr Kalulc ) had informcd thcm that the

firm had no instructions to rcprcscnt Kalulc in that suit. 20

Counsel furthcr told court that it is upon failing to cffcct ordinary scrvicc to Kalulc that they sought an ordcr frrr scrvicc out ofjurisdicticln. 'l'hc ordcr was issucd on 6'h Scptcmber,2O2l and scrvcd through thc I)crmancnt Sccrctary of thc Ministry of l.brcign Affairs. llc had subsequcntly

written to the Chicf llcgistrar of this Court on 4th April, 2022 forwarding thc court documents as confirmation that cfforls had bccn madc to scrvc Kalulc in rcspect of thc Clull Suit No. 467 oJ 2O2 t. llowcvcr, dr:d uccd from thc contcnts of thc cr>rrcspondcnccs attached to this application, Kalulc could not bc found as hc had shiftcd to anothcr location. 25

At that point il bccamc incrcasingly clcar that thc lcarncd counscl for thc applicant ought to havc sought furthcr guidancc from this court on how to makc Kalulc awarc ofthe mattcrs against him, including thc prcscnt applir:ation for consolidation of Cluil Suit No. 467 of 2O21 with Ciuil Sult .llo, 363 oJ 2021. 30

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It was also observed by this court that this was the same firm which on 1st September, 2021 had also acknowledged receipt of the documents (summons for directions). In both these suits, Kalule was a party and therefore had a stake in each, and in respect of this application.

Counsel Uwera's claim that *M/s Muwema & Co. Advocates* had no instructions to represent $\mathsf{S}$ was mere submissions from the bar and ought to have been followed up for confirmation in writing by the firm.

In the absence of any other reason to think differently, it is that firm which continued to represent him in matters relating to the suit property. As also noted by court, the firm had represented Kalule in an earlier application: Build net Construction Materials & Hardware

### Limited: MC No. 052 of 2021 under which the applicant company sought orders that: 10

- a) the caveat lodged on the comprised in Kyadondo Block 244 plot 1774 at Kisugu, Kampala, vide Instrument No. KCCA-00078196 on 18th February, 2021 by the 2nd respondent be removed/vacated. - b) The respondents pay compensatory/damages to the applicant for lodging the caveat 15 without lawful or reasonable cause; - *c) Costs of the application be provided for.*

The ruling was delivered by this court on 8th July 2021, and in the terms below:

- 1. the plaintiff shall make the necessary amendments under Civil Suit No. 363 of 2021, to 20 merge with all the matters and issues arising out of this application: MC. No.52 of 2021, and serve the amended plaint within two weeks after the delivery of this ruling; - 2. the defendants under the main suit shall file their respective statements of defence within two weeks after receiving service of the plaint; - 3. *the rejoinder to be filed seven days after receipt of the WSD;* - 4. costs of this application shall abide by the outcome of the main suit. - Order 11 rule (1) of the Civil Procedure Rules S. I 71-1 under which this application was 30 brought 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

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# application of one of the parties or of its own motion, at its discretion, and upon such terms as may seem fit-

a) order a consolidation of those suits; and

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b) direct that further proceedings in any of the suits be stayed until further order."

The fundamental principle for consolidation is to enable the court to effectually and completely deal with all matters brought before it and to avoid multiplicity of proceedings. (See: Kololo Curring Co. Ltd. v. West Mengo Co-op Union Ltd. [1981] HCB 60).

It is therefore well established that where two or three suits are filed involving the same parties and arising from the same cause of action, they should either be consolidated for purpose of 10 determining liability or only one of them, first in point of time heard first. (See: Teopista Kyebitama v Damiyano Batuma (1976) HCB 276, Luyimbazi Saul vs Mukasa Benon & others MA No.351 of 2021)

In the above ruling of 8th July 2021 as stated, this court had ordered a consolidation or merger of all the issues as may be identified in relation to the parties and property in contention. On 15 21st July, 2021, the amended plaint was filed but none of the defendants (who included the applicant company) deemed it necessary to amend their pleadings.

Going by Kalule's Scheduling memorandum, by 15th October, 2021 the same firm of *M/s* Muwema & Co. Advocates was still representing Kalule at that point and presumably also in 20 respect of the suit now pending before the commercial division, filed in August, 2021.

Service of court process is generally governed by order 5 of the CPR. It is a mandatory requirement under order 5 rule 10 of CPR to effect personal service to a defendant or his/her appointed agent. The firm of *M/s Muwema & Co. Advocates* still qualified for service as recognized agents for the purpose of **Order 3 rule 2.**

- 25 Also worthy of note is that for service to be deemed proper and effective there must be proof of service by a serving officer or process server. In all cases an affidavit of service must be filed, stating the time and manner in which the summons was served, and name and address of the person if any, identifying the person served; and witnessing the delivery of summons (order 5 rule 16 of the CPR). - The content of the affidavit of service is what forms the basis of the assertion that the party was 30 properly and effectively served but failed and/or refused to honor the service. (Dr. B. Byarugaba vs Kantarama HCMA No.229 of 2019).

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It is thus a settled principle of law, as has been held in a plethora of cases that service of court process is a condition precedent to the exercise of jurisdiction by a court over a litigant.

The non-service of a process therefore renders such process and all subsequent proceedings incompetent. In the circumstances of this case, the applicant ought to have requested court for

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its guidance on how to make Kalule aware of the application, having failed initially to effect service to him out of jurisdiction.

Thus in absence of proper service or leave to effect service out of time, a court would regard **Civil** Suit No. 467 of 2021 as incompetently before it. But not only that. What appears in the court system under Civil Suit No. 467 of 2021 in this division bears the names: Nakimbugwe Evalyne vs Abdul Lugumya & Others, which is before another judge of this division.

This court is therefore devoid of the jurisdiction to make any decision on consolidation regarding a matter that is not properly before it. It would also hesitate to make an order for consolidation where there appears to be two separate causes of action.

In Stumberg and another v Potgieter (1970) EA 323, court held that consolidation of suits should be ordered where there are common questions of law or fact. It should not be ordered 15 where there are deep differences between the claims and defence in each action.

For those reasons, I therefore decline to grant the application.

Costs shall abide by the outcome of the main suit.

le las

Alexandra Nkonge Rugadya

**Judge**

12th July, 2022.

Defined by enrand Achaeg J 12/7/2022.