Kajumba v Nyaisanja (HCT-01-LD-CS 43 of 2023) [2025] UGHC 137 (28 February 2025)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

**HCT-01-LD-CS 043 OF 2023**

**KAJUMBA PROSCOVIA :::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF**

**VERSUS**

**NYAISAIJA SOLOMON ::::::::::::::::::::::::::::::::::::::::::: DEFENDANT**

**BEFORE: HON. JUSTICE VINCENT WAGONA**

**RULING ON A POINT OF LAW**

**Introduction**:

When the case came up for mention on 26th August 2024, Counsel Kusiima Ivan for the Defendant submitted that he had a point of law to raise regarding the competence of the suit. A schedule to file written submissions was issued and extended on 1st October 2024 but only the Defendant’s counsel complied

**Point of law raised for the Defendant**:

Learned Counsel for the Defendant contended that the instant suit is barred by the *lispendens* doctrine under Section 6 of the Civil Procedure Act and that as such the suit is an abuse of court process given that the claim therein is the same claim in HCT-00-CV-CS-LD 38 of 2021 where the Defendant has already testified. That the Defendant herein is equally the 2nd Defendant in HCT-00-CV-CS-LD 38 of 2021 which was instituted by the same Plaintiff, and that both suits touch the same subject matter and seek similar reliefs. Counsel for the Defendant pointed out that the only negligible and minor difference is that HCT-00-CV-CS-LD 38 of 2021 has several defendants who the Plaintiff never included in the instant suit but that the subject of the suit is in *pari material* with the one in HCT-00-CV-CS-LD 38 of 2021.

Learned Counsel asserted that under the *lispendens* doctrine, no court ought to 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; and or the previously instituted suit or proceeding is between the same parties; and or the suit or proceeding is pending in the same or any other court having jurisdiction to grant the reliefs claimed.

Learned Counsel invited me to the decision of **Springs International Hotel vs. Hotel Diplomate Ltd & Boney M. Katatumba, HCCS No. 227 of 2011** for the notion that even if the “same parties” (as in numbers) in the earlier suit do not all appear in the subsequent suit, it would not make the “same parties” in the earlier suit that appear in the subsequent suit to be different parties; because they are not. And that filing of a subsequent suit well knowing that another suit with parties and issues directly and substantially the same is pending in another court amounts to abuse of court process. Counsel invited this court to find that the instant suit offends the doctrine of *lispendens*, is an abuse of court process and a clear case of multiplicity of suits. He prayed that the suit be struck out and dismissed with costs.

**Issues**:

The preliminary objection, in my view, raises the following issues for investigation;

1. **Whether the instant suit offends the lispendens rule.** 2. **Whether the filing of the instant suit was done in abuse of court process.** 3. **What are the remedies available to the parties?**

**Consideration by Court**:

***Issue No.1: Whether the instant suit offends the lispendens rule.***

According to the **Black’s Law Dictionary (8th Ed)**, “*lispendens*”, is a Latin expression which simply refers to a “pending suit or action”.

To address the problem of potentially contradictory judgments which would likely arise if two courts were to hear the same disputes separately, the Civil Procedure Act provides for two principles to avoid that problem; that is, the *res judicata* doctrine under **Section 7** of the Act which bars any court from trying any suit or issue in which the matter directly and substantially in issue **has been directly** and substantially in issue in **a former suit** between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised, and has been heard and finally decided by that court; and the *lispendens* rule under **Section 6** of the Act which bars any court from proceeding 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.

Therefore, whereas both *lis pendens* and *res judicata* have the function of regulating the relationship between parallel proceedings with the same or connected scopes; *res judicata* comes into play where there is a final judgment in a former substantially similar suit between the same parties, and the principle of *lispendens* only comes into play to avert the simultaneous pendency of substantially similar proceedings between the same parties to prevent the risk of having conflicting judgments and to protect the future negative effect of *res judicata*.

The tests applied when determining whether a suit offends the lispendens rule were laid out in the case of **Springs International Hotel vs. Hotel Diplomate Ltd & Boney M. Katatumba (supra)**, as follows;-

1. *Whether the matter(s) in issue in the instant suit are directly and substantially the same as the matters in a previously instituted suit;* 2. *Whether the parties in the previous suit are directly and substantially the same as in the subsequent suit; and* 3. *Whether the suit is proceeding or pending in the same or any other court having jurisdiction to grant the reliefs claimed.*

I will apply the above tests in resolving the first issue above.

**The first test**:

Regarding whether the matter(s) in issue in the instant suit are directly and substantially the same as the matters in a previously instituted suit, I have analyzed the pleadings of both **HCT-01-LD-CS 043 of 2023, Kajumba Proscovia vs. Nyaisaija Solomon** (instant suit) and **HCT-00-CV-CS-LD 38 of 2021, KajumbaProscovia vs. Fred Mushabe& 23 Ors** (earlier suit) including the reliefs sought in both suits.

I have read both Plaints for both suits in their entirety, and I have found that in the earlier suit, the Plaintiff claims under **Paragraphs 4 (a) and (b)** of the Plaint that she is the registered proprietor of land comprised in **Block 99 FRV 1260 Folio 13 Plot 18, FRV 1260 Folio 10 Plot 19, FRV 1260 Folio 11 Plot 20, FRV 1260 Folio 12 Plot 22, and FRV 1260 Folio 14 Plot 23, at Kajumbura, Karwenyi, Mpara, Kyaka County, Kyenjojo District present day Kyegegwa District** and that the defendants (including the defendant in the instant suit) without any colour or right entered onto the said land and illicitly cleared and destroyed her forests, crops, barbed wire and uprooted boundary mark stones and related boundary trees and commenced cultivation of seasonal crops thereon and established shanty structures. These are the same claims that the Plaintiff makes in **Paragraphs 4 (a) and (b)** of the Plaint in the instant suit. Under **Paragraph 5** of the Plaints to both suits, the Plaintiff sets out identical particulars of trespass, illegalities and destruction and under **Paragraph 6** of both Plaints, the Plaintiff claims to have suffered loss of income as a result of the alleged actions of the defendant and the particulars of special damages/loss of income set out in both Plaints are directly and/or substantially the same and/or similar both suits. In both suits, the Plaintiff claims to suffered loss or rental income per acre of Ug. Shs. 250,000/= for two seasons per year, loss of forests, crops, barbed wires and uprooted boundary marks all jointly valued at Ug. Shs. 15,000,000/= and mesne profits.

The nature of remedies sought in both suits are also directly and substantially the same and all relate to the same property. In both suits, the Plaintiff seeks a declaration that the Defendants are trespassers on the suit land, an eviction order, a permanent injunction against the defendants, general damages, mesne profits, interest and costs of the suit. It is therefore my finding that the matters in issue in the instant suit are directly and/or substantially the same and/ or similar as in the earlier suit and I accordingly resolve the first test in the affirmative.

**The second test**:

On whether the parties in in the previous suit are directly and substantially the same as in the subsequent suit, I have critically examined the record and the Plaint of the instant suit which filed by the Plaintiff herein on 12th July 2023 through her Lawyers of *M/s Ngamije law Consultants & Advocates*, and that of the earlier one which was filed by the same Plaintiff on 20th September 2021 through another Law firm, *M/s Kaahwa, Kafuuuzi, Bwwiruka & Co. Advocates* as per the Plaint on court record. Both suits were instituted by the same Plaintiff in this Court and the defendant herein is the 2nd defendant in the earlier suit. Both the Plaintiff and defendant in the instant suit cross-appear in both suits and their respective interests in both suits against each other are directly and substantially similar.

As it was held in **Springs International Hotel vs. Hotel Diplomate Ltd & Boney M. Katatumba (supra)**, the test in the *lispendens* rule is whether the parties in the previous suit are directly or substantially the same as in the subsequent suit; and the answer is in the affirmative for this case even when not all parties in the earlier suit appear in the instant suit. I accordingly resolve this test in the affirmative and hold that the parties in in the earlier suit are directly and substantially the same as in the instant suit.

**The third test**:

In relation to whether the suit is proceeding or pending in the same or any other court having jurisdiction to grant the reliefs claimed. There is no doubt that both **HCT-01-LD-CS 043 of 2023, KajumbaProscovia vs. Nyaisaija Solomon** (instant suit) and **HCT-00-CV-CS-LD 38 of 2021, Kajumba Proscovia vs. Fred Mushabe& 23 Ors** (earlier suit) are pending before me in this very court and the third test is accordingly also answered in the affirmative.

As a matter of fact, when the instant suit came up for mention on 16th May 2024, Counsel *Mugisa Richard Rwakatooke* for the Plaintiff informed this court that the instant suit is closely related to another matter, **HCT-00-CV-CS-LD 38 of 2021**, and he prayed that both suit be given the same hearing date of 24th May 2024. On 24th May 2024 and the subsequent hearing dates, learned counsel for the Plaintiff never moved court to solve the problem of the pendency of two parallel proceedings between the same parties but waited for the defendant to raise this objection.

Having resolved all the three tests in the affirmative, I consequently also resolve this issue in the affirmative and I accordingly uphold this point of law.

***Issue No.2: Whether the filing of the instant suit was done in abuse of court process.***

In the case of A**ttorney General and Another Vs James Mark Kamoga and Another SCCA No.8 of 2004**, *Mulenga JSC (RIP)* in the lead judgment approved the definition of “abuse of Court process” as per Black’s Law Dictionary 6th Ed and held that: *“Abuse of Court process involves the use of the process for an improper purpose or a purpose for which the process was not established.”*

In the case of; **Benkay Nigeria Limited vs. Cadbury Nigeria Limited No. 29 of 2006 (Supreme Court of Nigeria)**, their Lordships held:

*“In Seraki vs Kotoye (1992) 9 NWLR (pt 264) 156 at 188, this court on abuse of court process held....the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue.”*

In this case, the Plaintiff filed the instant suit against the defendant in July 2023 while being fully aware that in September 2021, she filed a similar suit against the same defendant and that the earlier suit is still pending before this very court. There is no issue or prayer that can be resolved or granted in the instant suit which cannot be resolved or granted in the earlier suit and this suit was therefore filed simply to perpetuate a multiplicity of suits.

In view of the above, it is my considered opinion that the Plaintiff’s conduct of instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue, amounts to abuse of Court process which cannot be condoned by this Court. The filing of a multiplicity of suits was not just an abuse of court process but potentially exposed this court to the danger of arriving at different and perhaps conflicting decisions in cases of the same subject matter which would have far reaching consequences of creating in court decisions.

***Issue 3: What remedies are available to the parties?***

For the reasons I have given in this ruling, I find merit in the preliminary point of law and make the following orders:

1. **This suit is hereby struck out and dismissed for offending Section 6 of the Civil Procedure Act and for having been filed in abuse of court process.** 2. **The parties are hereby directed to prosecute the earlier suit, HCT-00-CV-CS-LD 38 of 2021, Kajumba Proscovia vs. Fred Mushabe & 23 Ors without any further delay.** 3. **The costs of this suit are awarded to the Defendant.**

**It is so ordered.**

**Dated at Fort Portal this 28th day of February 2025**


Vincent Wagona

High Court Judge

**FORTPORTAL**