Muhindo and 8 Others v Kithende Hotels Project (Miscellaneous Application 4 of 2024) [2024] UGHC 610 (28 June 2024)

#### **THE REPUBLIC OF UGANDA**

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

### **MISC. APPLICATION NO. 004 OF 2024**

**(ARISING FROM EXECUTION APPLICATION NO. 026 OF 2023)**

#### **ARISING FROM MISC. APPLICATION NOS. 11 AND 91 OF 2022**

**(ALL ARISING FROM HCT-01-LD-CV-CS-001 OF 2022)**


## **VERSUS**

### **KITHENDE HOSTELS PROJECT (KITHOP) ::::::::::: RESPONDENT**

#### **BEFORE HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **RULING**

This application was filed by way of notice of motion under the provisions of section 98 of the Civil Procedure Act Cap. 71*,* Order 22 Rules 15 and 16 and Order 52 Rules 1 – 3 of the Civil Procedure Rules SI 71–1 seeking the following orders:

a) The respondent's taxed the costs of UGX. 5,906,000/= in Misc. Application No. 011 of 2022 be offset from the applicants' taxed costs of UGX. 28,891,500/= in Misc. Application No. 091 of 2022 and Civil Suit No. 001 of 2022.

- b) Execution issued in Misc. Application No. 026 of 2023 be set aside and the 9th applicant's Mortovehicles Reg. Nos. UAT 143Q and UAX 276S be released from the attachment. - c) The respondent pays the costs of this application.

# **Background**

The respondent filed Civil suit No. 001 of 2022 against the applicants for recovery of the land situate at Rwentutu Village in Kasese district. The applicants filed Misc. Application No. 11 of 2022 seeking to strike out the respondent's suit for being *res judicata* but the application was dismissed with costs for lack of proper service. The applicants then filed Misc. Application No. 091 of 2021 seeking the same remedy which was allowed with costs, and the court struck off the main suit with costs awarded to the applicants.

The respondent then filed a bill of costs which was taxed at UGX. 5,906,600/= and subsequently applied for execution Vide Execution Application No. 26 of 2013. The learned Deputy Registrar granted the application for execution and ordered for attachment of the 9th respondent's two motor vehicles Registration Nos. UAT 143Q and UAX 276S.

Dissatisfied with the Learned Deputy Registrar's decision, the applicants filed this application seeking this court to set off the respondent's taxed costs of UGX. 5,906,000/= in Misc. Application No. 011 of 2022 from applicants' taxed costs of UGX. 28,891,500/= in both Misc. Application No. 091 of 2022 and Civil Suit No. 001 of 2022, as

well set aside execution in Execution Application No. 26 of 2023 and release the said motor vehicles.

# **Grounds in Support of the Application**

The grounds in support of this application are set out in the affidavit in support, deponed by Aaron Muhindo, the 1st applicant, the gist of which is that; -

- a) The respondent filed Civil Suit No. 001 of 2022 against applicants for the recovery of land situate in Rwentutu Village in Kasese district. - b) The applicants filed Misc. Application No. 011 of 2022 which sought to strike off the suit for being *res judicata*, but the application was dismissed with costs for defective service. - c) The applicants again filed Misc. Application No. 091 of 2021 which was allowed with costs and the main suit was struck out with costs to the applicants. - d) The bill of costs for Misc. Application No. 011 of 2022 was taxed and allowed by consent at UGX. 5,906,600/=. - e) The applicants' bills of costs vide Civil Suit No. 001 of 2022 and Misc. Application No. 091 were also taxed and allowed with consent at UGX. 24,105,000/= and UGX. 4,786,500/=, respectively. - f) Instead of the respondent setting off UGX. 5,906,000/= from the applicant's taxed costs, he applied to the court for execution by attaching the motor vehicles of the 9th applicant. - g) The applicants had informed the court that the best remedy in the circumstances was to offset the costs of the respondent from those of the applicants rather than issuing the execution orders to the respondent herein.

- h) The attachment of the said motor vehicles was on 18th December 2023 during the court vacation and the value of the motor vehicle was above the money sought to be recovered. - i) The respondent is not operational and has no other known assets from which the applicants can recover the taxed costs.

The respondent opposed this application by way of an affidavit in reply, deponed by Appolinaris Kalyeboga Kithende, a trustee to the respondent, on the following grounds:

- a) Motor Vehicle Registration No. UAT 143Q Toyota Hilux Double Cabin was attached for recovery of the respondent's taxed costs of UGX. 5,906,000/=. - b) The applicants' claim of UGX. 28,891,500/= as taxed costs against the respondent is a waste of court time since the same application was raised before the learned Deputy Registrar and the application to set off was dismissed. - c) Misc. Application No. 091 of 2022 from which the applicants' taxed bill of costs arose is being challenged by the respondent who has already filed Misc. Application No. 29 of 2023 seeking leave to appeal in the Court of Appeal. - d) This application is misconceived, defective and a waste of the court's valuable time.

### **Representation**

At the hearing, Mr. Muhumuza Kaahwa represented the applicants while Mr. Lubangula Baluku Geoffrey represented the respondent. The hearing proceeded by way of written submissions. Both counsel filed written submissions which I have considered in this ruling.

### **Issues for Determination**

- 1. Whether the application raises sufficient grounds for the court to set off the taxed costs of the respondent from those of the applicants. - 2. Whether Execution orders issued in Execution Application No. 026 of 2023 be set aside. - 3. What remedies are available to the parties?

# **Consideration by Court**

Before I delve into the merits of the application, I will first address the preliminary points of law raised by counsel for the respondent on the competence of this application. The first point of law relates to the doctrine of *res judicata* while the second is the mode of institution of this application.

Counsel for the respondent argued that the instant application is *res judicata* as it was materially dealt with by the learned Deputy Registrar in Execution Application No. 26 of 2023. Counsel referred this court to section 7 of the Civil Procedure Act and authorities in the case *Godfrey Magezi Vs. National Medical Stores & 2 Others Misc. HCCS N0. 636 of 2016* and *Kamunye & Others Vs. the Pioneer General Assurance Society Ltd [1971] EA 263* on the doctrine of *res judicata*.

Counsel argued that the available remedy for the applicants would have been an appeal or review, if they so wished, but not instituting the instant application. Counsel cited Order 50 Rule 8 of the Civil Procedure Rules which provides that a person who is aggrieved by the order of a Registrar may appeal from the order to the High Court.

Counsel for the respondent argued that the instant application could not be misconstrued as an appeal since it is seeking to set off taxed bills of cost.

Counsel for the respondent also argued that if the instant application is to be construed as an appeal, then it was time-barred since the appeals from the decisions of the Registrar should be filed within 7 days as per section 79(1)(a) of the Civil Procedure Rules. Counsel argued that the instant application was filed on 12th January 2024 while the order of the Deputy Registrar in Execution Application No. 26 of 2023 was delivered in mid-November 2023 and there is no leave to appeal which was sought by the applicants.

On the other hand, counsel for the applicants submitted that there was never an application for set off before the learned Deputy Registrar save for Execution Application No. 26 of 2023 where the respondent was granted the execution order in respect to taxed costs in Misc. Application No. 11 of 2022.

Counsel for the applicants also argued that what was brought to the attention of the Deputy Registrar was the execution of the respondent's costs in Misc. Application No. 011 of 2022 to await the taxation of bills of costs in Misc. Application No. 091 of 2022 and Civil Suit No. 001 of 2022. Counsel argued that such submission of counsel did not amount to an application.

Counsel for the applicants argued that the application envisaged under Order 22 Rules 15 and 16 of the Civil Procedure Rules was a formal application and the parties could not set off at the hearing of Execution Application No. 26 of 2023 because the bills of costs for the applicants had not been filed and taxed.

Counsel argued that in the absence of taxed bills of costs in both Civil Suit No. 001 of 2022 and Misc. Application No. 091 of 2022, a set-off was not the issue before the Deputy Registrar, and therefore the doctrine of *res judicata* does not arise.

Counsel for the applicants also argued that the argument of counsel for the respondent that the applicants should have appealed is flawed, untenable and unstainable because an application envisaged under order 22 rules 15 and 16 is a formal application yet the ruling dated 16th of November 2023 is in respect to the notice to show cause why execution should not issue in respect to Execution Application No. 026 of 2023.

## **Consideration by the Court on the Preliminary Objections**

The common law principle of *res judicata* bars parties from litigating the same dispute again once a competent court has rendered a final judgment. This principle is codified in the *Civil Procedure Act Cap 7*. Section 7 of the Act provides thus:

> "*No court shall try 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.*"

The minimum requirements for *res judicata* were stated in the case of *Karia and Another Vs. Attorney General and others [2005] 1 EA 83* as follows: (a) there has to be a former suit or issue decided by a competent court, (b) the matter in dispute in the former suit between the parties must also be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar, and (c) the parties in the former suit should be the same parties or parties under whom they or any of them claim, litigating under the same title.

In the case of *Onzia Elizabeth v Shaban Fadul (Civil Appeal No. 19 of 2013)* Hon Justice Stephen Mubiru held thus:

> *"The plea of res judicata is a question of mixed law and fact; it is founded on proof of certain facts and then by applying the law to the facts so found. The basic method in deciding the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of the previous suit and then to find out as to what was decided by the judgment which is said to trigger the res judicata plea. The plea has to be substantiated by producing copies of the pleadings and judgment in the previous suit. In some cases, only a copy of the judgment in the previous suit is filed in proof of a plea of res judicata and if the judgment contains exhaustive or the requisite details of the material averments made in the pleadings and the issues which were taken at the previous trial, it may be sufficient proof."*

In the instant case, no application was filed by the applicants for the set off of the respective tax bills between parties. The application referred to by both counsel is Execution Application No. 26 of 2023 which was filed by the respondent herein seeking recovery or execution of the taxed costs in Misc. Application No. 11 of 2022. It is clear that at

the time the order was given, the bills of cost for the applicants in respect to Civil suit No. 001 of 2022 and Misc. Application No. 091 of 2022 had not been taxed, and therefore, as rightly argued by counsel for the applicants, the issue for set off could not have arisen.

In his ruling in Execution Application No. 26 of 2023, the learned Deputy Registrar observed that the parties had been given ample time to harmonize their position regarding setting off the bills of costs which had not been made and the matters alluded to were separate with separate bills. The learned Deputy Registrar also noted that there was no application challenging the execution and proceeded to grant the order of execution.

What can be gathered from the decision of the learned Deputy Registrar is that the setting off was left for the parties to handle but the parties failed to agree. The issue of set-off was neither material nor substantially an issue for determination before the learned Deputy Registrar but was left for the parties to agree on during their pretaxation meetings.

Order 22 Rule 15 envisages situations where the sums due to the decree holders are definite (see Order 22 Rule 15(3)(b)) and in this case costs of the applicants had not been taxed by the 16th of November 2023 when the order of the Registrar was issued.

Upon addressing my mind to the submissions of both counsel, it is my considered view that the learned Deputy Registrar dealt with the issue of execution as prayed by the respondent herein but not the issue of set off. Therefore, the doctrine of *res judicata* does not apply in the instant application and the objection raised by counsel for the respondent concerning *res judicata* is accordingly overruled.

As to whether this matter is properly instituted before this court, Counsel for the respondent argued that since there is a decision of the Deputy Registrar on the same matter, the proper forum was for the applicants to file either an appeal or an application for review but not a formal separate application. On the other hand, counsel for the applicants argued that Order 22 Rules 15 and 16 of the Civil Procedure Rules envisage a formal application and therefore this application is proper before this court.

For ease of reference, I will reproduce Order 22 Rules 15(1) which states as follows:

## *"15. Execution in case of cross decrees.*

*(1) Where applications are made to a court for the execution of cross decrees in separate suits for the payment of two sums of money passed between the same parties and capable of execution at the same time by that court, then—*

*(a) if the two sums are equal, satisfaction shall be entered upon both decrees; and*

*(b) if the two sums are unequal, execution may be taken out only by the holder of the decree for the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered on the decree for the larger sum as well as satisfaction on the decree for the smaller sum."*

From the wording of the rule, it is applied in applications for execution particularly where there are cross decrees.

Therefore, the application for set-off can be brought in either application for execution or as a separate miscellaneous application where there is a pending execution application. Nonetheless, it is now a settled law that where an application omits to cite any law at all or cites the wrong law but the jurisdiction to grant the order exists, the irregularity or omission can be ignored, and the correct law inserted **(See:** *Saggu Vs Road Master UG. Ltd [2000] EA LR 255)***.**

Citing the supreme court case of *Re Christine Namatovu Tebajjukira [1992 – 93] HCB 85,* Hon. Lady Justice Hellen Obura in the case of *Kingstone Enterprises Ltd and 2 Others Vs Metropolitan Properties Ltd HCMA No.314 Of 2012* held thus:

*"The administration of justice should normally require that the substance of disputes should be investigated and decided on their merits and that errors and lapses should not necessarily debar a litigant from the pursuit of his rights."*

In the instant case, this court has jurisdiction to grant the orders being sought by the applicants. Therefore, in view of the authority in *Saggu Vs Road Master UG. Ltd (supra),* it is my considered view that this is a deserving case where substantive justice should be administered without undue regard to lapses in the application provided the conditions for set-off are met, as I will demonstrate hereunder.

**Issue 1: Whether the application raises sufficient grounds for the court to set off the taxed costs of the respondent from those of the applicants.**

Under Order 22 Rule 15 of the Civil Procedure Rules, the conditions for set-off include; (i) the existence of cross decrees in separate suits for the payment of two sums of money passed between the same parties and capable of execution at the same time by that court, (ii) the decreeholder in one of the suits in which the decrees have been made must be the judgment debtor in the other and each party fills the same character in both suits, (iii) the two or more decrees should be capable of execution at the same time, and (iv) the sums under the decrees must be definite.

Although counsel for the respondent submitted that the order resulting from the dismissal for default was not a decree, I find that the decrees in issue have equal footing as they relate to the order of costs and for purposes of execution. In any case, the definition of a "decree-holder" includes any person in whose favour a decree has been passed *or an order capable of execution has been made* and includes the assignee of a decree or order as per section 2 of the Civil Procedure Act.

I find that the facts of the instant application fit squarely into the conditions for setting off as set out in Order 22 Rule 15 of the Civil Procedure Rules. There are cross decrees passed in separate suits for payment of money between the parties, and one of the parties who is a judgement creditor in one suit (Misc. Application No. 011 of 2022) is a judgment debtor in another suit (Civil Suit No. 001 of 2021 and Misc. Application No. 91 of 2022), and the sums of money in respective decrees are definite. These sums are related to taxed bills of cost in the aforementioned suits.

Although the applicants paid UGX. 5,906,000/= in court in fulfilment of execution orders in Execution Application No. 26 of 2023, this money has not been remitted to the respondent. Therefore, instead of remitting the said monies to the respondent who equally owes the applicants UGX 28,891, 500/=, it is only prudent and just that this court makes a set-off and execution is taken out only by the holder of the decree for the larger sum remaining after deducting the smaller sum.

## **Issue 2: Whether Execution orders issued in Execution Application No. 026 of 2023 be set aside.**

It is not in dispute that the applicants paid the taxed costs in Misc. Application No. 011 of 2022 into this court and the court bailiff was paid his costs of recovery, the amount which was arrived at by consent of the parties. Therefore, there is no justification whatsoever why the 9th applicant's Motor Vehicle Registration No. UAT 143Q Toyota Hilux Double Cabin would still be under attachment.

Even if the applicants had not paid the costs taxed against them into court, the execution orders vide Execution Application No. 26 of 2023 would not stand in view of the set-off as noted under issue 1. Therefore, the execution orders of the learned Deputy Registrar in Execution No. 26 of 2023 are hereby set aside.

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

I have already made a finding that the instant application meets the conditions for a set-off. In the circumstances, the following remedies are available to the applicants; -

a) The taxed costs against the applicants in Misc. Application No. 011 of 2022 is set off from the taxed costs against the respondent in Civil Suit No. 001 of 2022 and Misc. Application 091 of 2022.

- b) The applicants shall automatically take out an execution order for payment of UGX. 22,985,500/= as the remainder of the decrees in Civil Suit No. 001 of 2022 and Misc. Application 091 of 2022 against the respondent. - c) The orders of the learned Deputy Registrar in Execution Application No. 26 of 2023 are hereby set aside. - d) The Court Bailiff appointed to execute orders in Execution Application No. 026 of 2023 is hereby ordered to unconditionally release the 9th applicant's Motor Vehicle Registration No. UAT 143Q Toyota Hilux Double Cabin with immediate effect. - e) The applicants are entitled to a refund of UGX. 5,906,000/= paid into this court. - f) Each party shall bear its own costs for this application.

I so order.

Dated at Fort Portal this 28th day of June 2024.

**Vincent Emmy Mugabo Judge**

**28th June 2024**