Wakilii

Amamu Limited v Barclays Bank of Uganda Limited and Another [2021] UGCA 217

Court of Appeal · 2021 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from High Court (Commercial Division) ruling upholding a preliminary objection of res judicata and dismissing the suit
Decision
Appeal dismissed with costs; dismissal of Civil Suit No. 21 of 2010 on preliminary objection upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal dismissed the appeal, holding that the trial Judge did not err in finding Civil Suit No. 21 of 2010 barred by res judicata under section 7 of the Civil Procedure Act. The sale of the mortgaged property, equity of redemption and vacant possession had already been determined by a consent decree and consent order in the earlier Civil Suit No. 310 of 2008. A consent order is a valid judgment of the court, binding until set aside on grounds vitiating a contract. Any challenge to the consent order and to the sale by execution had to be made in the earlier suit; a fresh suit was also barred under section 34 of the Civil Procedure Act as a matter arising in execution of the decree.

Outcome

Appeal dismissed with costs; dismissal of Civil Suit No. 21 of 2010 on preliminary objection upheld

Facts

Amamu Limited mortgaged its property, LRV 2610 Folio 7 Plot 5 George Street, Kampala (Amamu House), to Barclays Bank of Uganda Ltd to secure a US$3,500,000 loan. Upon default, the appellant filed Civil Suit No. 310 of 2008 to forestall sale of the property. That suit was resolved by a consent decree dated 7 January 2009 providing a payment schedule and permitting realisation of the security on default. The appellant again defaulted, and the property was sold to Stellar Properties Limited for US$5,400,000. A consent order dated 17 December 2009 recognised the sale, recorded deductions and the credit balance, and provided for delivery of vacant possession of the upper floors. The appellant then filed Civil Suit No. 21 of 2010 seeking to nullify the sale, cancel Stellar's title, set aside the consent order, recover possession and obtain damages, alleging fraud and illegality. The respondents raised a preliminary objection of res judicata, which the High Court upheld, dismissing the suit.

Issues

  1. Whether the appellant's Civil Suit No. 21 of 2010 was res judicata and was rightly dismissed on that ground.
  2. Whether the trial Judge failed to properly evaluate the evidence relating to the plea of res judicata.

Orders

  • Appeal dismissed with costs.

Rules and key headnotes

Res Judicata — Section 7 Civil Procedure Act — Matter directly and substantially in issue in former suit
A subsequent suit is barred by res judicata under section 7 of the Civil Procedure Act where the plaintiff seeks to bring before the court, in another way or as a new cause of action, a transaction already put before a competent court in earlier proceedings and adjudicated upon, including every point that properly belonged to the earlier litigation and could have been raised with due diligence.
Res Judicata — Consent decree and consent order as final adjudication
A consent decree or consent order is a judgment of the court, valid and binding until set aside, and constitutes a final determination capable of grounding a plea of res judicata in respect of the issues it settled.
Consent orders — Manner of impeachment — Estoppel by contract
A consent order can only be impeached and set aside on grounds that would vitiate a contract, such as fraud, and must be challenged by application in the suit in which it was made rather than by a separate fresh suit; it operates as an estoppel by contract binding on the parties and those claiming under them.
Execution — Section 34 Civil Procedure Act — Bar on separate suit for questions arising in execution
All questions relating to the execution, discharge or satisfaction of a decree, including a sale of security following default under a consent decree, must be determined by the court executing the decree and not by a separate suit; a fresh suit on such a matter is barred by section 34 of the Civil Procedure Act.
Res Judicata — Privies — Persons claiming under a party
Res judicata affects not only parties to a former suit but also their privies and persons claiming under them; a purchaser of the suit property who acquired an interest by purchase after the earlier proceedings claims under the vendor party and may rely on the plea.
Preliminary objection on point of law — Determination on pleadings without trial
Where the facts on which a plea of res judicata depends are contained in the pleadings, agreed facts, or in a consent judgment and orders of which judicial notice may be taken, the point of law may be determined without first conducting a trial to receive evidence.

Legislation cited (6)

Cases cited (19)

  • Attorney General and Uganda Land Commission v James Mark Kamoga and James Kamata (Supreme Court Civil Appeal No. 8 of 2004)
  • Semakuta v Magala and others [1979] HCB 90
  • Barclays Bank of Uganda Ltd v Jing Hong and Guo Dong (Civil Suit No. 35 of 2009)
  • Makula International Ltd v His Eminence Cardinal Nsubuga and Another [1982] HCB 11
  • Eng. Yashwant Sidpra & another vs. Sam Ngude Odaka & others, H.C.C.S 2007
  • Morgan v Ottoman Bank (1968) EA 156
  • Magero Enterprises v Uganda Breweries Ltd (Civil Suit No. 462 of 1991)
  • Banque des Marchands de Moscou (Koupetschesky) v Kindersley [1950] 2 All ER 249
  • Lotta v Tanaki and others [2003] 2 EA 555
  • Kamunye and others v Pioneer General Assurance Society Ltd [1971] EA 253
  • Greenhalgh v Mallard [1947] 2 All ER 255
  • Palmer and another v Durnford (a firm) and another [1992] 2 All ER 122
  • Evans v Bartlam [1937] 2 All ER 646
  • Bhagwat Sharan (Dead THR.LRS) vs. Purushottam & others, Civil Appeal No. 6875 of 2008
  • Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
  • Nurdin Ali Dewji and others v G.M.M. Meghji & Co. and others [1953] 20 EACA 132
  • Brooke Bond Ltd v Mattya [1975] EA 266
  • Huddersfield Banking Company Ltd v Henry Lister and Sons Ltd (1895) 2 Ch D 273
  • Peters v Sunday Post Limited [1958] EA 424

Full judgment

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Amamu Limited v Barclays Bank of Uganda Limited and Another 2021 UGCA 217 (21 October 2021)
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.