Wakilii

Afrofam (U) Ltd v Binaisa & co Advocates (CIVIL SUIT No. 737 OF 1989)

High Court · [1991] UGHCCD 2 · 1991 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Preliminary objection raised by defendant seeking dismissal of suit on grounds that plaint discloses no cause of action and is frivolous and vexatious
Decision
Preliminary objection dismissed; matter to proceed to hearing on the merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Court declined to dismiss suit on preliminary objection. Where plaintiff had paid a debt twice because defendant advocates sued for the full amount knowing substantial payment had been made, plaintiff entitled to bring suit to determine who has obligation to reimburse the overpaid sum. The suit discloses a cause of action and is not frivolous or vexatious merely because an earlier judgment exists.

Outcome

Preliminary objection dismissed; matter to proceed to hearing on the merits

Facts

In Civil Suit No. 1231 of 1988, Lenzi Giancomo sued Afrofam (U) Ltd under summary procedure for shs. 1,100,000/=. Judgment was entered for Giancomo and a warrant of attachment issued. Afrofam did not appeal or apply for leave to defend. Afrofam then brought the present suit against Binaisa & Co Advocates seeking shs. 1,252,300/=, alleging that the advocates sued for shs. 1,400,000/= knowing that shs. 900,000/= had been repaid. Receipts showed payments totaling at least shs. 500,000/= were made on 9 December 1988 and 10 August 1988, before the summary suit plaint was filed on 13 December 1988. Defendant raised preliminary objection that the plaint discloses no cause of action and is frivolous and vexatious.

Issues

  1. Whether the plaint discloses a cause of action.
  2. Whether the suit is frivolous and vexatious and should be dismissed.

Orders

  • Preliminary objection overruled.
  • Costs awarded to the plaintiff/respondent.

Rules and key headnotes

Civil Procedure — Preliminary Objections — Frivolous and Vexatious Suits — Test for Dismissal
To bring a suit within the description of frivolous and vexatious, it is not sufficient merely to say that the plaintiff has no cause of action. It must appear that the alleged cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide and contend that he had a grievance which he was entitled to bring before the court.
Civil Procedure — Cause of Action — Overpayment Claims — Double Payment Due to Earlier Judgment
Where a plaintiff has doubly paid to discharge the same obligation because a suit was filed after money to discharge the debt had substantially been paid, the plaintiff is entitled to file suit to determine who has the obligation to reimburse the overpaid money. Such a suit discloses a cause of action and is not frivolous or vexatious.
Tort Law — Restitution — Overpayment — Claim Against Advocates Who Sued for Discharged Debt
It is immaterial whether or not advocates had malice or fraud when filing a suit, so long as in fact the suit was filed after money to discharge the debt sued for had been paid. A plaintiff who overpaid as a result may claim restitution.

Legislation cited (1)

  • Civil Procedure Rules O.33

Cases cited (2)

  • Norman v Mathews (1916) 85 L.J.K.B. 857
  • Clissold v Cratchley [1910] 2 KB 244

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Afrofam (U) Ltd Vs Binaisa & co Advocates (CIVIL SUIT No. 737 OF 1989) [1991] UGHCCD 2 (6 July 1991)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.