Tirupati Development (U) Limited v Pramukh Construction Ltd and Kenya Commercial Bank (U) Ltd (Miscellaneous Application 3126 of 2023) [2025] UGCommC 63 (24 February 2025)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA MISCELLANEOUS APPLICATION NO. 3126 OF 2023 IARISING OUT OF MISCELLANEOUS APPLICATION NO. 0678 OF 2OI9I IARTSTNG OUT OF CIVIL SUIT NO. s82 OF <sup>20171</sup> TIRUPATI DEVELOPMENT (U) LIMITED:::::i:::::::::::::::::::APPLICANT

## VERSUS

## I. PRAMUKH CONSTRUCTION LTD

# 2. KENYA COMMERCIAL BANK (U) LTD: : : : : : : : : : : : : : : : : : : : : : :RESPONDENT BEFORE HON. LADY JUSTICE ANNA B. MUGENYI

## RULING ON PRELIMINARY OBJECTION

## INTRODUCTION

This application was brought by notice of motion under section 33 of the Judicature Act, Sections 98 and 64(e) of the Civil Procedure Act (CPA), and Order 46 rule l(lXb) & 8 of the Civil Procedure Rules (CPR) for orders that the ruling of Hon. Lady Justice Anna B. Mugenyi dated 191h December 2019 be reviewed and set aside, and the costs be in the cause.

The application was supported by the affidavit of Kruti Barot, the applicant's managing director, and opposed by the affidavit in reply of Kalyanzi Mavji Kara for the I't respondent and Sheila Catherine Abamu for the 2nd respondent.

#### BACKGROUND

The facts giving rise to the case are that the I't respondent sued the applicant, the 2nd respondent, and the Commissioner of Land Registration vide civil suit no. 582 of 2017. The said parties to the suit executed a consent settlement which was endorsed by the Registrar on 12'h July 2019.

The applicant filed miscellaneous application no. 0678 of 2019 wherein it sought for orders that the consent decree and all orders arising out of the aforesaid consent judgment be reversed, vacated or set aside. The court declined to set aside the consent judgment and dismissed the application.

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The applicant then filed the instant application vide miscellaneous application no. 3126 of2023 seeking for orders that the ruling ofthe trial judge declining to set aside the consentjudgment be reviewed and set aside on the grounds that the applicant has discovered new evidence that shows that the consent was illegally procured.

During the hearing of this application on 5'h November 2024, counsel for the respondents raised a preliminary objection that this application is barred in law for being res judicata. This court is, therefore, required to deal with this point of law before determining the application.

## REPRESENTATION

M/s Trust Law Advocates represented the applicant, whereas the lst respondent was represented by M/s Buwembo & Co Advocates and the 2'd respondent by IWs Kabayiza, Kavuma, Mugerwa & Ali Advocates.

## BRIEF SUBMISSIONS OF COUNSEL

## l't Respondent's submission

Counsel submitted that the instant application is res judicata and, therefore, barred in law. Counsel further contended that the applicant avers that he has new facts however, on the reading of his application, there are no new facts that were not available when the former miscellaneous application no. 676 of 2019 was determined, and the court declined to set aside the consentjudgment. Counsel prayed for this application to be dismissed with costs for being res judicata.

## 2nd Respondent's submission

Counsel submitted that not only is this application res judicata, but it is also an abuse ofthe court process as all the people who signed the consentjudgment do not dispute their signatures, and that is why the court declined to set aside the consent judgment in miscellaneous application no.676 of 2019.

Counsel further submitted that the ruling of this coun in miscellaneous application no.676 of2019, at page 4, which is sought to be set aside, the trial judge stated that:

"Counsel for the I't respondent availed receipts of monies paid to the applicant to prove pa)lment of the monies in issue to the applicant by the lst respondent. Apart from denying that monies were paid, the applicant didn't adduce any evidence to show that the receipts were forged or false or belonged to or were issued in respect

of other transactions, and not the one in issue. In conclusion, the consent judgment was legally entered into. "

Counsel for the 2nd respondent then submitted that the above finding ofthe court evaluated the evidence in respect of the receipt of money by the applicant. That finding of the court cannot be a subject of review. It can only be the subject ofan appeal because, in this particular application, there is no new evidence being brought forward regarding that particular finding of the court.

## Applicant's submission in reply

Counsel for the applicant submitted that the application before the court does not seek to set aside the consent judgment but is rather inviting the court to relook into its ruling that denied the setting aside of the consent judgment. Counsel submitted that for the application/suit to be res judicata, they must be trying to bring forward, something that was litigated previously and this is not the case in this application.

Counsel for the applicant referred this court to annexure 'E', which is the copy of the application in miscellaneous application no.676 of 2019. Counsel submitted that the laws under which it was brought were fundamentally different, and the prayers sought were equally fundamentally different. He stated that in the former application, they sought to set aside the consent, and the crucial law upon which it was brought was Order 9 Rule 4 of the CPR. Counsel contended that the application which is currently before the court is one of review requesting the court to have another look at the ruling of2020, and it is brought under Section 82 ofthe CPA as well as Order 46 rule 1( 1 )(b) and 8 of the CPR.

Counsel further submitted that the grounds upon which this application is premised is that there is a discovery of new facts which was not litigated in the original suit. Counsel relied on annexure G, where he stated that the Registrar who signed the consent confirmed that she signed the same after the parties had signed, and in the absence of the parties, one of the lawyers, Mr Obole Gilben, claims his signature was forged, and counsel contends that they have evidence that one of the lawyers who witnessed is not an advocate. Counsel contended that the due process for entering consent judgments was not followed.

Counsel for the applicant further submitted that section 82 of the Civil Procedure Act categorically states that nothing stops a party from applying for review. He contended that they were simply applying to review a ruling. That even where an appeal might be a possibility, one always had the option to go for review.

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## l't Respondent's submission in rejoinder

Counsel submitted that counsel for the applicant is just trying to mislead the court, and a look at paragraph 14 of the affidavit in support of the application, indicates that the applicant seeks to review and set aside the ruling in High Court miscellaneous application no. 676 of 2019 and set aside the consent judgment in civil suit no. 582 of 2019. Counsel submitted that the summary of this application is to have a consent judgment set aside, and this court already heard this application and made an order.

Counsel further submitted that in the police statement, the Registrar did not deny her signature like counsel said, and none ofthe parties denied their signatures. Counsel averred that there is nothing illegal about a Registrar endorsing a consent in the absence of parties, it is just good court practice that parties appear before the Registrar. That also all the other issues raised by counsel were already raised in miscellaneous application no. 676 of 2019, and that there is nothing new he is raising.

## 2'd Respondent's submission in rejoinder

Counsel for the 2nd respondent submitted that he agrees with counsel for the I't respondent that the endorsement of the consent judgment by the Registrar on 12th July 2019 does not invalidate the consent. He contended that the court, in delivering its ruling, stated that the content of the said consent had already been agreed to by the parties, and there was nothing new on the date when the Registrar endorsed it. Counsel averred that the consent itself was part of the court proceedings in miscellaneous application rro.676 of 2019.

#### RULING

I have considered the submissions ofcounsel for the parties and addressed my mind to the pleadings; and the main issue for consideration is whether the application before this court is Res judicata.

## Section 7 of the Civil Procedure Act provides for Res judicata 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 Court of Appeal in **Ponsiano Semakula v Susane Magala and others (1993) KALR 213** explained the doctrine of res-judicata as follows:

"The doctrine of res-judicata, embodied in s 7 of the Civil Procedure Act, is a fundamental doctrine of all courts that there must be an end to litigation. The spirit of the doctrine succinctly expressed in the well-known maxim: 'nemo debt bis vexari pro una et eada causa' (No one should be vexed twice for the same cause). Justice requires that every matter should be fairly tried, and having been tried once, all litigation about it should be concluded forever between the parties. The test whether or not a suit is barred by res-judicata appears to be that 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 applied not only to points upon which the first court was actually required to adjudicate but to every point which properly belongs to the subject of litigation and which the parties, exercising reasonable diligence might have brought forward at the time".

The minimum requirements under section 7 of the CPA were stated by the Supreme Court in the case of Karia and another v Attorney General and others [2005] 1 **EA 83, and they include:**

(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 instant suit, it is not in contention that there is a former suit or issue decided by this court vide Miscellaneous Application No. 676 of 2019. It is also not in dispute that the parties in the former application vide Miscellaneous Application No. 676 of 2019 are the same parties in the instant application Miscellaneous Application No. 3126 of 2023. The former application was decided by this court, and a ruling was delivered to that effect.

The issue that needs to be determined is, therefore, whether the matters in dispute in Miscellaneous Application No. 676 of 2019 between the parties are directly and substantially in dispute between the parties in the current Miscellaneous Application No 3126 of2023.

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. (Onzia Elizabeth v Shaban Fadul High Court Civil Appeal No.00l9 of20l3).

In the former application, which is Miscellaneous Application No. 676 of 2019, which was decided by this court on 19'h December 20 I 9, the applicant sought for the consent decree and all orders arising out of the aforesaid consent judgment to be reversed, vacated or set aside. The court declined to set aside the consent judgment and dismissed the application.

In the instant application, the applicant is seeking for orders that the ruling ofHon. Lady Justice Anna B. Mugenyi dated the 19th December 2019 be reviewed and set aside, and the costs be in the cause.

It is important to note that in the current application, granting an order to set aside the ruling in Miscellaneous Application No. 676 of 2019 would in itself amount/result in setting aside the consent judgment.

It can, therefore, be seen that in both applications, the matter directly and substantially in issue is the consent judgment which was entered into by the parties and in both, the applicant is seeking to set aside the consent judgment. This is an issue that this court heard and disposed ofon its merits.

When both applications are read, the applicant contends that the consent was entered without following due process, is contrary to the rules goveming the execution of consent judgment and is, therefore, irregular and against public policy.

In both applications, the applicant contends that the consent was shrouded in secrecy and endorsed by the Registrar in the absence ofall the parties. This court addressed this issue in Miscellaneous Application No. 676 of 2019 and found that the Registrar signing the consent in the absence of the parties did not invalidate it since the content of the consent had already been agreed to by the parties in the presence of the mediator and endorsed by all the parties and their representatives.

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In the current application, the applicant is seeking review on the grounds that they have discovered new evidence that proves that the consent was illegally procured, and the new evidence they contend, among others, includes the Registrar signing in the absence of the parties; Kavuma not witnessing the parties signature; the person who signed as a director did not have authority and that one of the lawyers who witnesses on behalfofthe l't applicant is not an advocate.

This court, in its ruling, addressed the issue ofthe Registrar signing after the parties, as discussed above. The court also pronounced itself and found that by the time Habib signed the consent on behalfofthe applicant, he was the general manager and acted only on behalfofthe applicant. The court also noted that the applicant had not availed evidence that the signature of Opode was forged.

I, therefore, find that the applicant is trying to bring before this court in another way an application which was already heard and determined. Hearing such an application would go against section 7 of the CPA, which prohibits the courts from trying matters where the matter in issue is directly and substantially in issue in another matter that was determined by a competent court between the same parties.

I, therefore, find that the current application is Res judicata and is accordingly dismissed with costs to the respondents.

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HON. LADY JUSTICE ANNA B. MUGENYI DATED .\*..\ )48 5