Wakilii

Bank of Africa v Kalule & Ors; Gulberg Hides & Skins Ltd v Bank of Africa (H.C.Miscellaneous Application No. 126 of 2021)

High Court · [2021] UGCOMMC 123 · 2021 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for dismissal on grounds of res judicata and leave to amend counterclaim in ongoing civil suit arising from loan transaction dispute
Decision
Application granted in part — res judicata defence dismissed; leave to amend counterclaim granted

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An application to dismiss a civil suit on grounds of res judicata was refused where the current suit raised different issues and parties from those in previous consolidated suits. Leave to amend the counterclaim was granted to include claims arising after the original counterclaim was filed, as the amendment would not occasion injustice to the opposite party and would prevent multiplicity of proceedings.

Outcome

Application granted in part — res judicata defence dismissed; leave to amend counterclaim granted

Facts

The plaintiff company sued Bank of Africa to recover USD 151,716 and for return of two certificates of title pledged as collateral security. The bank denied the allegations and counterclaimed for USD 71,789 from the respondents (partners in the plaintiff company) under credit facilities. Two earlier suits (Civil Suits No. 642 of 2014 and No. 260 of 2013) had been decided concerning one of the secured properties (at Seguku), where the court found the mortgage illegal for lack of spousal consent and ordered the bank to refund UGX 200,000,000 to a third party purchaser. The bank paid the third party UGX 477,000,000 and sought to add this sum to its counterclaim. The bank applied to dismiss the current suit as res judicata on the basis that issues concerning the Seguku property had been conclusively determined, and sought leave to amend its counterclaim to include the amount paid to the third party.

Issues

  1. Whether Civil Suit No. 243 of 2017 between the Plaintiff and the Defendant is res judicata.
  2. Whether the Applicant/Counterclaimant should be granted leave to amend the Counterclaim.
  3. What remedies are available to the parties.

Orders

  • Civil Suit No. 243 of 2017 is not res judicata and shall proceed to be heard.
  • The Applicant/Counterclaimant is granted leave to amend the counterclaim.
  • Amended Counterclaim shall be filed and served within 15 days from the date of this Ruling.
  • The Plaintiff/Counter Defendant may file and serve their Defence to the Amended Counterclaim within 15 days of being served.
  • The costs of this application shall abide the outcome of the main suit.

Rules and key headnotes

Civil Procedure — Res Judicata — Essential Elements for Application
For the doctrine of res judicata under section 7 of the Civil Procedure Act to apply, four essential elements must be satisfied: (1) the existence of a former suit finally decided by a competent court; (2) the parties in the former suit must be the same as those in the latter suit or parties from whom the latter parties derive interest; (3) the parties in the latter suit must be litigating under the same title as those in the former suit; and (4) the matter in dispute in the former suit must be directly and substantially in dispute in the latter suit.
Civil Procedure — Res Judicata — Different Parties and Issues
A current suit is not res judicata where the parties differ from those in earlier suits and the issues in controversy are different, even where the suits arise from the same underlying transaction. Issues that were not and could not properly have been raised in earlier suits are not barred by res judicata.
Civil Procedure — Amendment of Pleadings — Leave to Amend Counterclaim
Leave to amend a counterclaim to include claims arising after the original counterclaim was filed will be granted where the amendment will not occasion an injury or injustice to the opposite party that cannot be sufficiently compensated for by costs, and where the application is not made mala fide. The court may grant such amendments to resolve real issues in controversy and prevent multiplicity of proceedings.

Legislation cited (3)

Cases cited (4)

  • Africa One Tours & Travel Ltd and Another v The Government of Libya (H.C. Civil Suit No. 253 of 2012)
  • Maria Kevina v Kyaterekera Growers Coop Society [1996] 1 KALR 160
  • Gaso Transport Services Limited v Matin Adala Obene (Supreme Court Civil Appeal No. 4 of 1994)
  • Jas Progressive Investments (U) Ltd v Tropical Africa Bank Ltd (H.C. Civil Suit No. 78 of 2011)

Full judgment

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

Bank of Africa v Kalule & Ors; Gulberg Hides & Skins Ltd v Bank of Africa (H.C.Miscellaneous Application No. 126 of 2021) [2021] UGCommC 123 (30 November 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.