Cantina Bar and Restaurant (SMC) Ltd and Another v Humura and Another (Miscellaneous Application 341 of 2023) [2024] UGHCCD 162 (25 October 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION)

#### MISCELLANEOUS APPLICATION NO. 341 OF 2023

## (Arising from Consolidated Suits HCCS No. 166 of 2023)

| 1. CANTINA BAR & RESTAURANT (SMC) LTD. | | | | |----------------------------------------|----------------------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-------------| | | <table> 2. KATO ROBERT </table> | | | | | | VERSUS | | | $1.$ | <b>HUMURA PAUL</b> | | | | $2.$ | <b>MUSONI DICKSON</b> | $\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\$<br>$\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\$ | RESPONDENTS |

#### **BEFORE: HON. JUSTICE SSEKAANA MUSA**

#### **RULING**

The Applicants brought this application under Section 33 of the Judicature Act Cap 13, Section 6, 98 of the Civil Procedure Act Cap 71, as well as under Order 52 r 1,2 & 3 of the Civil Procedure rules for the following Orders;

- a) An Order doth issue striking out the respondent's pleadings in HCCS No.166 of 2023 on account that the pleadings do not raise a cause of action against the applicants, the pleadings are founded on a nullity, and they are a perpetration of illegalities and violations of the law and that the suit is frivolous, vexatious and an abuse of court process and an Order dismissing HCCS No. 166 of 2023. - *b) Costs of this application be provided for*

The application was supported by the affidavit of Kato Robert and contends as follows:

- *1.* That the respondent's claims stem from a tenancy agreement with the former landlords –The registered Trustees of Kampala Archdiocese wherein the applicants were not parties and lacked any privity to the said contract. - *2.* That the respondent/plaintiffs claims in HCCS No. 166 of 2023 are an abuse of court process as the prayers made in HCCS No. 197 of 2020 between the respondents and their former landlords the Registered Trustees of Kampala Archdiocese. - *3.* That the applicant not being a party to the tenancy agreement between referred to by the respondents in their plaint and attached as annexture A to the plaint renders the case as instituted being against a wrong party and thereby not disclosing a cause of action against the applicants in that capacity. - *4.* That the respondents/plaintiffs filed HCCS No. 197 of 2020 against their former Landlords-The Registered Trustees of Kampala Archdiocese seeking the same orders sought in HCCS No. 166 of 2023. - *5.* That the respondents/plaintiffs filed an application to add the applicants as parties and failed to prosecute the application and it was dismissed and later allegedly was withdrawn by the respondents. - *6.* The respondents are playing delaying gimmicks and tactics to frustrate the applicants and not prosecute their frivolous claims.

The 1 st respondent filed an affidavit in reply and contended that;

1. This application has no basis and does not disclose any grounds for striking out the pleadings since the claim in the present suit is quite different from the suit earlier filed in court.

- 2. The respondents case in this suit is for passing off and thus the tenancy agreement is not the basis for the suit. - 3. The respondent further contended that the applicant cannot rely on a latter suit to pray for the dismissal of the instant suit as the applicant/defendant in the instant has sued different parties. - 4. The ruling in Misc Application No. 1143 of 2020 did not bar the respondent/plaintiff from filing the instant suit against the applicant. The said ruling did not render the instant suit res judicata.

The Applicants were represented by *Counsel Kamugisha Samson* while the respondent was represented by *Counsel Allan Bariyo*.

At the hearing of the application, court directed the parties to file written submissions in support of the application and the applicants filed their submissions as directed.

## **ISSUES:**

The parties raised the following issues in their submissions, which this court adopts with modifications and shall address in determination of this matter;

- *(1) Whether the suit is barred in law?* - *(2) Whether the suit discloses a cause of action against the applicants/defendants?* - *(3) Whether the suit is frivolous and vexatious and an abuse of process?* - *(4) What remedies are available to the applicants?*

### *Determination*

# *Whether the suit is barred in law?*

The applicants counsel submitted that the matter before the court vide HCCS No. 166 of 2023 is the same as previous matter duly filed in court vide HCCS No. 197 of 2020. The same orders are being sought before the same court and the court has the powers to stay or dismiss the same.

It was contended further that the respondent is fully aware of the existing suit since they are represented by the same counsel and had earlier filed an application to have the applicants added as parties which was dismissed by court for want of prosecution. The present action is an abuse of court process since such a fresh suit is guised as an appeal.

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

*No court shall proceed with the trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceedings 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 relief claimed.*

### *Analysis*

The respondent filed the original suit HCCS No. 197 of 2020 against the Registered Trustees of Kampala Archdiocese in July 2020, seeking the following reliefs;

*"The plaintiffs bring this suit against the defendant for a declaration that the defendant, directly or through his agents, has unlawfully and unfairly grabbed and used the plaintiff's business name, and other properties, or caused the same, a permanent injunction prohibiting the defendant from trading under the said name, compensation and damages to the plaintiffs and costs of the suit."*

In 2023, the respondent/plaintiff filed a suit seeking the following reliefs against Cantina Bar & Restaurant SMC Ltd :

*"The plaintiffs bring this suit against the defendants for a declaration that the defendants unlawfully and unfairly traded under the plaintiffs' business name, and other properties, committed a tort of passing off, a permanent injunction prohibiting the defendants from trading under the said name, compensation and damages to the plaintiff interest and costs."*

The two suits are same in everything and the sums claimed are the same save for the parties. The respondent has split the cause of action against two different parties and it would appear he wants to be compensated twice against different parties.

The respondent only added the tort of *'passing off'* while in the first suit he only described it as ' *unlawfully and unfairly traded under the plaintiffs' business name'* ion of this provision is out of context since this matter cannot be barred by law as the two suits or claims are quite different from the suit which is already in court. This in my view, means the same thing and the respondent cannot bring fresh suit against different parties seeking the same reliefs. The only solution available is for the respondents was to add those parties but he failed prosecute the applications.

## *Whether the suit discloses a cause of action against the applicants/defendants?*

The applicants counsel submitted that in the plaintiffs refer to a tenancy agreement between themselves and the Registered Trustees of Kampala Archdiocese as the basis of their rights being on the land they formerly occupied. They fail to demonstrate in their plaint how the applicants/defendants are privy to the contract between the respondents/plaintiffs and the Registered Trustees of Kampala Archdiocese.

The applicants' counsel further submitted that the respondents have failed to show that the violations of their rights if any was by the applicants/defendants. The respondents participated just like the applicants in the bidding process as

advertised by the land owner. The respondents were out bidded following the evaluation process by the land owner and a tenancy agreement was then entered into.

The respondents had vacated the premises by the time the applicants entered on the premises and they cannot claim that the applicants were at any time party to any arrangement. The respondents pleading do not show any proximity as between the parties for which there is no liability that can be imputed on the applicants as they have never had any contract or engagement with the respondent.

## *Analysis*

From the onset, I must state that the general rule is that whenever the court is called upon to evaluate and determine, whether or not a plaint raises a reasonable cause of action, the court looks at the plaint and its annexures - See: *Serugo Ismael vs. Kampala City Council & Anor (Constitutional Appeal 2 of 1998) [1999] UGSC 23 (11 June 1999); Kampala Rugby Union Football Club v Capital ventures International Ltd (M. A No. 523/2011) [2012] UGCommC 8; Maximov Oleg Petrovich vs Premchandra Shenoi & Anor[1998]I KALR 52;*

Where questions of whether a plaint discloses a cause of action arise, court is obligated to peruse the plaint itself together with its annexures in order to answer this question. *Kapeka Coffee Works Ltd v NPART CACA No. 3 of 2000*. Court does not have to consider any other information save for what is laid out in the plaint to ascertain the cause of action.

A cause of action refers to a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.

A cause of action means the cause of complaint or a right or obligation or a dispute which a court of law would use its adjudicatory or jurisdictional powers to determine and resolve. It also consists of or includes all material facts a plaintiff is saddled with the responsibility of proving if traversed in order to obtain judgment in his/her favour.

The Supreme Court defined what a *cause of action* is in the case of *Major General David Tinyefunza vs. Attorney General Const. Appeal No. 1/1997* where the court cited with approval the definition of a *case of action* by Mulla on the Indian Code of Civil Procedure, Volume 1, and 14th Edition at page 206:

> *"A cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. ... It is, in other words, a bundle of facts, which it is necessary for the plaintiff to prove in order to succeed in the suit. But it has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It is a media upon which the plaintiff asks the court to arrive at a conclusion in his favour. The cause of action must be antecedent to the institution of the suit."*

The term *"reasonable cause of action"* on the other hand was defined by Lord Pearson in the case of *Drummond Jackson vs British Medical Association [1970] 1 All England Law Reports page 1094* per Lord Pearson at page 1101

> *"In my opinion the traditional and hitherto accepted view—that the power should only be used in plain and obvious cases—is correct according to the evident intention of the rule for several reasons. ... No exact paraphrase can be given, but I think 'reasonable cause of action' means a cause of action with some chance of success, when (as required by r 19(2)) only the allegations in the pleading are*

*considered. If when those allegations are examined it is found that the alleged cause of action is certain to fail, the statement of claim should be struck out."*

It is a settled position of the law that for a Plaintiff to establish a sustainable cause of action in their pleadings, the plaint must show *(a) that the plaintiff had a right (b) that the right was violated or breached, and (c) that the Defendant is liable – See: Auto Garage vs Motokov [1971] EA 514; Tororo Cement Co Ltd v Frokina International Ltd (Civil Appeal 2 of 2001) [2002] UGSC 24 (24 April 2002);*

The plaint of the respondents does not disclose a reasonable cause of action from the facts and documents attached to the plaint. The respondent plaintiff has reproduced the same plaint he filed in civil suit No. 197 of 2020 to support a fresh claim in civil Suit No. 166 of 2023.

## *Whether the suit is frivolous and vexatious and an abuse of process?*

The applicants counsel contended that the respondent previously filed HCMA No. 1143 of 2020 seeking to have the applicants added as parties to HCCS No. 197 of 2020 the same was dismissed for want of prosecution following a failure of the respondent to prosecute the same. The respondent also filed HCMA No. 474 of 2020 seeking the same prayers but decided to withdraw the same against the applicants.

The actions of the respondent filing multiple suits and applications against the applicants/defendants speaks to ulterior motives and further proves that the proceedings in the instant suit are merely aimed at annoying and harassing the applicants and are a reckless misuse of court process and ought to be dismissed.

## *Analysis*

The court has an inherent jurisdiction to protect itself from abuse. To see that its process is not abused by proceeding without reasonable grounds so as to be vexatious and harassing.

The respondents appear to be using the judicial process to harass or irritate the applicant in order to impede the administration of justice. The respondents are using the court process mala fide since there are filing multiple applications and suits between the same parties. The process of courts should be used *bona fide* and properly, and must not be abused.

The respondent filed two applications which he failed to prosecute and continues unjustifiably to file a matter which discloses no cause of action against the applicants who are privy to their contract with Kampala Archdiocese. The respondent is splitting their cause of action between two parties and thus making a double claim for compensation.

The respondents/plaintiffs' case is frivolous and vexatious as submitted by the defence counsel. "Frivolous" connotes the absence of seriousness or the lack of validity or legitimacy. A frivolous pleading would also be vexatious in that its effect would be counterproductive. See *Ndungo Seti & Anor v Sekiziyivu Sammy Jones & Anor HCCS No. 286 of 2011: Re Singapore Souvenir Industry (Pte) Ltd [1985-1986] SLR(R) 161.*

Secondly, the case is also "Vexatious" i.e it is oppressive to the opposing party and it obstructs the court from gaining a full understanding of the issues and a party acts with an ulterior motive. The action is vexatious if the party bring it is not acting *bona fide* and merely wishes to annoy or embarrass the opponent or when it is not

calculated to lead to any practical result. *See Lehman Brothers Special Financing Inc v Hartadi Angkosubroto [1998] 3 SLR(R) 664: Goh Koon Suan v Heng Gek Kiau [1990] SLR(R) 750*

The respondents case has no basis and the circumstances surrounding the case are against the respondents' claim and it is right to conclude that the proceedings are intended to annoy the applicants after they out bidded them in managing the premises for a car wash & lounge. It is purely a case of business rivalry which is pushing the respondent to file baseless applications and suits.

In each case where there is a glimpse of abuse of court process, the court has to examine its merits because different conditions would affect the conclusion that would be reached as to whether or not an abuse exists. See *Waziri v Gumel (2012)*

## *9 NWLR p 185*

Where a court comes to a conclusion that its process is being abused, the appropriate order to make is that of dismissal of the process.

## *What remedies are available to the applicants?*

The applicants sought the following order from this court;

*An Order doth issue striking out the respondent's pleadings in HCCS No.166 of 2023 on account that the pleadings do not raise a cause of action against the applicants, the pleadings are founded on a nullity, and they are a perpetration of illegalities and violations of the law and that the suit is frivolous, vexatious and an abuse of court process and an Order dismissing HCCS No. 166 of 2023.*

It can be deduced from the above order that the applicants are seeking both a striking out of pleadings, as well as an order dismissing HCCS No. 166 of 2023 which sometimes quite unusual. The court may in exercise of its discretion decide the most appropriate remedy to give depending on the circumstances of the case.

The order striking out is mostly invoked where either the court process is incompetent or the party lacks competence or *locus standi*. Similarly, where the court lacks competence or jurisdiction to hear the matter, the appropriate order to make is one striking out. Thisisto enable the party have another look at the process and see whether he can carry out what one may naively call "some repairs", to bring back or return the matter to the jurisdictional stream of the court.

Striking out an action and striking out a plaint are of the same effect. The court should however exercise its discretion to strike out and not dismiss so that the party may, if he wishes, perfect his pleadings. Power of court to dismiss a case *in limine* should be exercised with utmost circumspection and not lightly as a matter of course. The court may strike out or dismiss the action where a point of law is raised which disposes of the action. See *Nigeria Airways Ltd v Lapite (1990) 7 NWLR (pt 163) page 392 SC page 405* Where an action is dismissed, unless the rules permit, the action cannot be reopened. An order of dismissal operates as estoppel *per rem judicatam* and, *ipso facto*, bars the losing party for all times from re-litigating the same subject matter. Any proceeding which is an abuse should be dismissed since it is not *bona fide.*

The most appropriate remedy in this application is to dismiss the suit since the respondent/plaintiff had already filed a matter which is pending before this court. Secondly, the respondents suit is intended to vex the applicant and the plaint as noted earlier does not disclose a reasonable cause of action.

The application is allowed with costs and the respondents/plaintiffs' suit is dismissed with costs.

It is so ordered.

*SSEKAANA MUSA JUDGE 25th OCTOBER 2024*