Ndemere v Mukankunsi (Civil Suit 23 of 2019) [2024] UGHC 832 (18 April 2024)

# 5 **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KABALE**

# **CIVIL SUIT NO 0023 OF 2019**

# **NDEMERE CHRISTOPHER**:::::::::::::::::::::::::::::::::::::::::::::: **PLAINTIFF VERSUS** 10 **ALLEN MUKANKUNSI:**::::::::::::::::::::::::::::::::::::::::::::::::::: **DEFENDANT BEFORE HON. JUSTICE SAMUEL EMOKOR**

# **RULING**

The Plaintiff brings the instant suit against the Defendant seeking an order for 15 specific performance for payment of UgX 119, 950,000/=, general damages, interest and costs of the suit. The Defendant filed his written statement of defence to the same.

When this matter came up for hearing Rev. Bikangiso for the Defendant intimated that he had a Preliminary Objection to raise. This court as a result provided the

20 parties with a schedule for filing written submissions to which they all complied.

# **Submissions**.

Rev. Bikangiso for the Defendant in his written submissions contends that the Plaintiff sued the Defendant under civil suit No. 0048 of 2018 at Kabale Chief Magistrates' Court for recovery of UgX 20,050,000/=being money paid to the 25 Plaintiff for the intended sale agreement of part of the house in Plot 15, Volume 44 26, Folio 3, Coryndon Road Kabale Municipality and the intended sale never materialized and the Plaintiff in his reply said that there was a sale between him and the Defendant and that the issues framed for determination were;

# 5 **1. Whether there was a valid sale agreement between the parties**

# **2. Whether there was a breach of the sale agreement.**

# **3. What are the remedies available to the parties**

It is the submission of Counsel that the above matter was still pending in the fore said Court when the Plaintiff filed Civil Suit No. 0023 of 2019 before this Court 10 between the same parties and the same subject matter.

Counsel further contends that the money being claimed by the plaintiff in this case is part of the counter claim in the case before the Chief Magistrate Court Kabale. The issue Counsel raised at this point is what happens if the lower Court says that there is no valid sale agreement while this court orders for the specific

15 performance of the same. Counsel relies on the provisions of **Section 6** of the **Civil Procedure Act** arguing that matter cannot proceed in two Courts when the matter in issue is substantially the same. Counsel for the Defendant therefore prays that the instant suit is dismissed with costs.

Mr. Masereka Godwin for the Plaintiff in his written submissions in reply admits 20 that the Defendant Filed a suit against the Plaintiff in lower Court under Civil Suit No. 0048 of 2018 for recovery of UgX 20,050,000/= arising out of a sale agreement dated 17/06/2014 executed between the Defendant and Plaintiff.

Counsel contends that the Plaintiff here in filed his amended written statement of defence and made a counter claim there in against the defendant herein for an 25 order of specific performance of the sale agreement for sale and purchase of the

property UgX 119,950,000/= but that the trial Chief Magistrate dismissed the

5 same because it exceeded the pecuniary jurisdiction of the Chief Magistrates Court.

It is against the above background Counsel contends that the Plaintiff decided to file the instant suit seeking orders for specific performance against the Defendant. It's the argument of Counsel that the cause of action in Civil Suit No. 0048 of 2018

10 in the lower Court is totally different from the Plaintiffs cause of action in this suit and the same cannot affect this suit. Counsel further presses the point submitting that the Defendants point of law is based on facts of the case and the same is not a point of law and that the defendants worry about delivery of two Judgments in this court and lower court cannot amount to a point of objection.

15 It's just out of anticipation.

It's the submission of Counsel that **Section 6** of the **Civil Procedure Act** cited by the Defendants Counsel is not applicable to the case at hand as the cause of action in the two said matters are not the same and the remedies sought in the two matters are totally different much as they arise from the same transaction.

20 Counsel for the plaintiff therefore prays that the preliminary objection is overruled as the same has no merit.

# **Determination.**

It is an admitted fact that the instant Plaintiff is the Defendant in Civil Suit No. 0023 of 2019 pending before the Chief Magistrates Court Kabale and that the 25 instant Defendant is the Plaintiff in that suit.

The issues for determination before that court relate to the validity of the sale agreement of a house in Plot 15, Volume 4426 Folio 3, Coryndon Road Kabale

- 5 Municipality while before this Court the Defendant in Civil Suit No. 0023 of 2019 is now the Plaintiff seeking orders of specific performance for payment of UgX 119,950,000/= arising out of the sale agreement whose validity is yet to be determined before the Chief Magistrates Court and the order sought against the Defendant in this case who is also the Plaintiff in the matter before lower court. - 10 The Chief Magistrate in my opinion rightly dismissed the defendants claim filed as a counter claim for specific performance of the agreement for sale and purchase in the sum of UgX 119,000,000/=. He clearly had no monetary jurisdiction in this matter.

The issue now is whether after suffering that defeat the defendant was justified 15 in seeking a remedy before this court by filing a fresh claim before it.

Counsel for the defendant argues that the suit is not competently before this Court and relies on the **Provisions of Section 6 of** the **Civil Procedure Act** that will reproduce below:

"*No court shall proceed with the trial of any suit or proceeding in which the matter* 20 *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"*

25 The issues framed before the Chief Magistrates Court in Civil Suit No.0023 of 2019 interalia is;

*"Whether there was a valid sale agreement between the parties"*

5 While in the Joint Scheduling Memorandum before this court the issues framed for determination interalia is;

*"Whether or not the Plaintiff entered into sale transaction for part of the suit property"*

The issue before the lower court and this Court both relate and rotate around the 10 contract for sale entered between the parties over the same property situated at Plot 15, Volume 4426 Folio 3, Corydon Road Kabale Municipality. The matter in issue is therefore directly and substantially in issue I so find.

The parties in the two suits are also the same. The 2 nd consideration is also met.

The Chief Magistrate Court has jurisdiction to handle civil suit No.0023 of 2019

15 that seeks recovery of the sum of UgX 20,050,000/=. It therefore has jurisdiction to grant the relief sought.

The 3rd consideration is also met.

I would agree with the Defendants counsel that it would result in an absurdity if the lower Court and this court reached different findings on the same set of facts

20 before them. This in itself would create hardships with enforcement of the decisions as well. It is for such scenarios that the above **Provision** of **Section 6** of the **Civil Procedure Act** was created.

I find the objection of the Defendants Counsel to be unassailable and they are upheld.

5 The instant suit is therefore hereby dismissed with costs to the Defendant.

Before me

……………………………….. 10 **Samuel Emokor Judge 18/04/2024**