Kusiima and 3 Others v Bansigaraho (Miscellaneous Application 98 of 2024) [2025] UGHC 90 (17 January 2025)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA MISC. APPLICATION No. 098 OF 2024 (Arising from Civil Suit No. 016 of 2024)

### 1. KUSIIMA ROBINAH

- 2. TIBAGWA SOLOMON - 3. KUNIHIRA HARRIET - 4. KAAHWA LYDIA:::::::::::::::::::::::::::::::::::: **VERSUS**

#### BANSIGARAHO ROBERT::::::::::::::::::::::::::::::::::::

## BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

#### **RULING**

- In this application brought under S.98 CPA, 0.6 rr.28, 29, 30 & O.52 $\sim$ 11 **CPR**, the Applicant is seeking the following orders: - Civil Suit No. 016 of 2024 be dismissed with costs for being $\mathbf{1}_{-}$ resiudicata. - $2.$ The Respondent has no lawful claim or interest whatsoever in the property in FRV 105,1 Folio 6, Block 7, Plot 44 land at Rwamutonga and the plaint in Civil Suit No. 16 of 2024 be struck out for disclosing no reasonable cause of action. - $\overline{3}$ . Civil Suit No. 016 of 2024 be dismissed with costs for being frivolous, vexatious and an abuse of the court process. - $4.$ Costs of this application be paid by the Respondent. - The grounds of the application are contained in an affidavit in $[2]$ support of the application deposed by Kusiima Robinah, the $1st$ Applicant, which briefly are: - $(a)$ The dispute between the Applicants and Respondent were fully determined vide a Consent Judgment in Civil Suit No. 32 of 2013 in the High Court of Uganda at Masindi. - The said Consent Judgment was between the same parties to this $(b)$ suit, over the same property, it is still standing and binding upon the parties. - The Respondent does not challenge the said Consent wherein he $(c)$ voluntarily relinquished all claims over the property comprised in FRV 1051, Folio 6, Block 7, Plot 44, land at Rwamutonga and

is therefore barred from bringing this suit over the same subject matter without first setting aside the said Consent judgment.

- The Respondent was fully paid to abandon his claims over the $(d)$ said land and therefore cannot seek to benefit twice through this suit, yet such benefit is not provided for in the Consent judgment. - (e) The entire Civil Suit No. 016 of 2024 as instituted by the Respondents herein is barred by law, frivolous, vexatious and an abuse of the court process. - It is in the interest of justice that the baseless suit against the $(f)$ Applicants vide **Civil Suit No.16 of 2024** be dismissed with costs and the earlier Consent judgment be upheld. - The Respondent opposed the application in his affidavit in reply as $[3]$ follows: - That the issue in the plaint is about breach of contract in respect $(a)$ to the 330 acres at Hanga, Kigorobya sub-county in Hoima District pursuant to an agreement dated 5th day of September, 2013 and the said land and agreement has never been litigated between him and the Applicants. - That several negotiations and agreements took place before the $(b)$ Consent was signed and the agreement dated 5th day of September was amongst them and that the Consent judgment referred to by the Applicants did not state anywhere that the terms of the previous agreements have been cancelled. - That the Respondent can only be said to have been fully $(c)$ compensated after all the agreements which were made between him and the Applicants are fully implemented/performed. - (d) That it is not true that the provision for giving land to the Respondent as compensation was abandoned as the said agreement has never been cancelled by the parties. - That it is in the interest of justice that the Applicants' $(e)$ application be dismissed with costs and the main suit be heard on its merits.

## **Counsel legal representation.**

The Applicants were represented by Mr. Steven Galabuzi of $M/s$ $[4]$ Litmus Advocates, Kampala while the Respondent was represented by Mr. Tumusiime Justus of M/s Tiam Advocates, Kampala. Both Counsel filed their respective submissions for consideration in the determination of this application.

- From the pleadings and submissions of both Counsel, the issues for $[5]$ determination appear as follows: - Whether Civil Suit No. 016 of 2024 is res judicata. $1.$ - Whether Civil Suit No. 016 of 2024 discloses no reasonable cause $2.$ of action, is frivolous, vexatious and an abuse of the court process. - What remedies are available to the parties. $\mathfrak{Z}$ .

## Issue No.1: Whether Civil Suit No. 016 of 2024 is res judicata.

- $[6]$ Counsel for the Applicants submitted that under S.7 CPA, no court shall try any suit where the matter in issue was also in issue in a previously instituted suit which was fully determined by a competent court. - That in the present case, from the facts constituting the cause of $[7]$ action in the plaint, it is clear that the Respondent had a claim against the Applicant over property comprised in **Plot 44 at Rwamutonga** vide H. C. C. S. No. 32 of 2012 at Masindi which was determined by a Consent judgment. - Counsel contended that the dispute was settled and the Respondent $[8]$ was fully compensated to relinquish all his proprietory claims over the property comprised in **Plot 44 at Rwamutonga.** That therefore, the matter of the Respondent's claim over property comprised in **Plot** 44 at Rwamutonga was substantially in issue in C. S. No. 32 of 2013 and the matter was fully determined by way of a Consent judgment and thus it is *res judicata*. - Counsel for the Respondent on the other hand submitted that $[9]$ whereas the former Civil Suit No. 32 of 2013 was for recovery of land and cancellation of the Respondent's title in respect of property comprised in FRV 1051, Folio 6, Block 7, Plot 44, land at **Rwamutonga,** the present suit is for breach of contract in respect of the 330 acres of land at Hanga, Kigorobya sub-county, Hoima **District** thus this is a new cause of action on a new subject matter and therefore it is not *res judicata*.

- [10] **Res judicata** is governed by $S.7$ CPR which states that a court shall not try any suit 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 in which the issue has been subsequently raised, and has been heard and finally decided by that court. See also the case of James Katabazi & 21 ors vs Secretary General of the East African Community & Anor, E. A. C. J. Ref. No. 1 of 2007 where the doctrine of *Res judicata* was summarised as follows: - The matter must be directly and substantially in issue in the two $(i)$ courts. - The parties must be the same or the same parties under whom $(ii)$ any of them claim, litigating under the same title. - (iii) The matter must have been finally decided in the previous suit. - [11] In Kamunye & ors vs The Pioneer General Assurance Society ltd [1971] DA 263, the test to be applied by court to determine the question of **Resjudicata** was heard thus:

"The test whether or not a suit is barred by res judicata... is the plaintiff in the second suit trying to bring before the court in another way and in the form of a new cause of action, a transaction which he has already put before a court of competent jurisdiction in earlier proceedings and which has **been adjudicated upon.** If so, the plea of res judicata applies not only to points upon which the first court was actually required to adjudicate but to every point which properly belongs to the subject matter of litigation and which parties and their privies exercising reasonable diligence, might have The subject matter in this brought forward at the time. subsequent suit must be covered by the previous suit, for res judicata to apply".

[12] In the instant case, by way of background, the parties entered into negotiations with the view to settle Civil Suit No. 32/33 of 2012 that was pending in court. The negotiations culminated in 2 memoranda of understanding (M. O. Us). The $1^{st}$ one is dated 4/9/2013 and the $2^{nd}$ one is dated $5/9/2013$ and both were in respect of settling the

Respondent over the suit land comprised in FRV 1051, Folio 6, Block 7, Plot 44, measuring 103.553 hectares, land at Rwamutonga. Katanga, Bugambe, Hoima District.

- [13] Upon perusal of both memoranda of understanding, I find that apparently, the Respondent was to be settled by payment of Ugx. 160,000,000/= in the $1^{st}$ M. O. U and in addition, land at Hanga village, Bwikya Parish, Kigorobya sub-county, Hoima District 330 acres shown measuring $2nd$ $as$ $\quad\text{in}\quad$ the $M. O. U$ for his relinquishment of all his claims, possessory interest, any interest whatsoever in respect of the land comprised in FRV 1051 Folio 6 measuring 7 Plot $\overline{44}$ **Block** Approx.103.553 ha. Land $at$ Rwamutonga, Katanga, Bugambe, Buhaguzi, Hoima District. - [14] Upon receipt of the Ugx. 160,000,000/= as reflected in the $1^{st}$ M. O. U and land at Hanga, measuring 330 acres reflected in the 2nd M. O. U, the Respondent was to handover to the Applicants the Certificate of title in respect of the property in issue comprised in FRV 1051, Folio 6, Block 7, Plot 44, measuring 103.553 ha land at Rwamutonga, duly transfer forms. Katanga. signed photocopy valid $\overline{\text{of}}$ identification etc. to enable transfer of the property in favour of the Applicants.

[15] In **para 7 of the** $2^{nd}$ **M. O. U**, the parties concluded as follows:

"The parties shall also execute a consent judgment in respect of High Court Civil Suit No. 32 of 2012 in respect of the said *property outlining their understanding and in determination of* High Court Civil No. 33 of 2022".

- [16] Indeed on the $16/7/2013$ , the parties entered into a consent judgment vide Civil Suit No. 32 of 2013 filed in court on 17/9/2013 notably interalia, on the following terms: - The parties do agree to amicably settle High Court Civil Suit No. $1.$ 33 of 2012. - $2.$ The $1^{st}$ Defendant shall handover the certificate of title in respect of the property comprised in FRV 1051 Folio 6 Block 7 Plot 44 measuring approx. 103.553 hectares' land at Rwamutonga, Katanga, Bugambe, Buhaguzi (the suit land) to the Plaintiff.

- The $1$ st Defendant's registration as proprietor in respect of the suit $3.$ land be cancelled and the plaintiffs be registered as proprietors. - The $1st$ Defendant has been duly compensated and hereby $4.$ relinquishes all his claims, possessory interest and /or any interest whatsoever in respect of the suit land. - The $1^{st}$ Defendant and all those who derive interest from him to 5. vacate the same within a period of 10 days from the date of hereof".

Both parties accordingly signed the Consent judgment dated $16/7/2013$ .

- [17] It is clear from the entirety of the above that the negotiations as evidenced by the 2 M. O. Us yielded fruits and a Consent judgment was entered into by both parties finally settling the pending Civil Suit case as 32/33 of 2012 in respect of the suit property and the 330 ha of land at Hanga, Kigorobya, Hoima District as agreed to in para 7 of the $2^{nd}$ M. O. U. Para 4 of the consent judgment clearly reflected that the $1st$ Defendant (Respondent) has been duly compensated (as per terms of the 2 M. O. U.) and relinquished all his claims, possessory interest, or/and any interest whatsoever in respect of the suit land. - [18] Therefore, for the Respondent to institute H. C. C. S. No. 16 of 2024 seeking breach of contract of the $2^{nd}$ M. O. U when the consent judgment is still standing and binding the parties without first applying to set it aside, I find that Respondent/Plaintiff in the $2nd$ suit is trying to bring before the court in another way and in the form of a new cause of action, a transaction which was already before a court of competent jurisdiction in the earlier proceedings and was adjudicated upon by way of a Consent judgment. - [19] It is not in dispute that the parties in both suits are the same or are the same parties under whom some of them claim, litigating under the same title and that a counsel judgment was entered finally deciding the rights of the parties in the previous suit. I find that the subject matter in this suit and the 330 acres of land at Hanga, Kigorobya, Hoima District were covered by the previous suit and therefore res judicata applies. The Consent judgment encompassed regarding compensation by payment the $\mathcal{L}$ $M. O. Us$ $\quad\text{ of }\quad$ ugx.

$160,000,000/$ = to the Respondent and receipt of 330 acres of land at Hanga, Kigorobya, Hoima District. In conclusion, I find that Civil Suit No. 016 of 2024 is res judicata.

# Issue No.2: Whether Civil Suit No. 016 of 2024 discloses no reasonable cause of action, a frivolous, vexatious and an abuse of court process.

- [20] In consideration for rejection of a plaint for disclosing no cause of action under O.7 r.11 CPR or a reasonable cause of action and for being frivolous or vexatious under O.6 r.30(1) CPR, only the plaint and its annexures can be looked at, see Ismail Serugo vs KCC & A. G. Constitutional Appeal No. 2 of 1998 and General Parts (U) Ltd vs Middle North Agencies Ltd & Anor H. C. C. S. No. 610 of 2013. - [21] In the instant case, counsel for the Respondent submitted relying on Tororo Cement Co. Ltd vs Frokina International Ltd S. C. C. A. No. 02 of 2001 that the Respondent had a right to be shown the 330 acres of land by the Applicants pursuant to the agreement dated $5/9/2013$ (1st M. O. U) and the right was violated by Applicants' failure to perform/show him the land and therefore, that the cause of action exists and the main suit is not frivolous and vexatious. - [22] I agree with Counsel for the Applicants that for the Plaintiff to disclose a cause of action, there must be a legally recognised right enjoyed by the Plaintiff and violation of the said right by the Defendant. In the instant case, as per the plaint, the cause of action, interalia, is as per para $3(1)$ of the plaint:

"A declaration that the defendants are in breach of a contract dated the $5th$ day of September, 2013."

The prayers include specific performance of the contract and or in the alternative an order compensation to the Plaintiff at the current market value of the land in the area for the 330 acres of the Defendants hand back to the Plaintiff the original certificate of title etc. of the suit land.

[23] The plaint does not disclose a reasonable cause of action because **S.3(1) (c) of the Limitation Act** renders the Plaintiffs action which is based on the M. O. U. dated 5/9/2013 barred in law. A cause of action based on a contract which is brought after expiration of 6 years from when it arose is barred in law. $S.3(1)(a)$ of the Limitation Act provides thus:

"1) The following actions shall not be brought after the expiration *of six years from the date on which the cause of action arose; a) Actions founded on contract or tort....."*

[24] In the instant case, the contract forming the basis of the Plaintiff's September executed 2013. and action $was$ $\overline{in}$ the Respondent/Plaintiff instituted the present suit in **May 2024** which is over 10 years after the action arose, thus the Respondent lost a legally recognised right to enforce a contract when he did not bring his action within the statutory period of 6 years. If the defendants undertook to show the Plaintiff where the **Suit land or the 330 acres** were located within 10 days from the date of execution of the M. O. U. dated $5/9/2013$ as he alleges in the plaint, and the Applicants failed to do so, he ought to have brought an action for its enforcement As a result, I accordingly find that the plaint is within $6$ years. frivolous and vexatious and does not disclose a reasonable cause of action.

## Issue No.3: Remedies:

[25] This application has been brought under the provisions of $0.6$ rr $28$ , 29 & 30 CPR. Under r.29, a suit shall be dismissed if a decision as a point of law disposes of the entire suit. In the instant case, this court having found that the suit is *res judicata* and it is frivolous and vexatious, time barred and does not disclose a reasonable cause of action, the plaint is struck out and the suit is accordingly dismissed with costs to the Applicants.

Dated at Hoima this $17th$ day of **January**, 2025.

**Byaruhanga Jesse Rugyema JUDGE**