Wakilii

Hydro Engineering Services (U) Ltd v Thorne International Bioler Services Ltd (Civil Suit No. 594 of 2007)

High Court · [2011] UGCOMMC 303 · 2011 Suit Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Summary suit for debt on oral contracts; defence pleading res judicata based on prior concluded suit between same parties
Decision
Suit dismissed on the preliminary objection of res judicata

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A claim for payment of USD 27,758.63 under separate oral contracts for man-power and machine hire was barred by res judicata where the same amount appeared as Item 6 in exhibit P18 tendered in a prior suit between the same parties concerning the same project, and where the defendant had filed a counterclaim after the amount became due, requiring the plaintiff to have raised this claim in reply to the counterclaim. The court held that even if the prior judgment did not expressly determine that item, it was a matter which properly belonged to the subject of the earlier litigation and ought to have been raised then.

Outcome

Suit dismissed on the preliminary objection of res judicata

Facts

The plaintiff sued the defendant claiming USD 27,758.63 for oral contracts for man-hour services and hire of welding machines executed in November-December 2003 and completed on 5 December 2003. Invoices were sent and the defendant acknowledged liability by email on 23 December 2003. The defendant pleaded that this claim had been part of an earlier suit between the same parties, HCCS No. 818 of 2003, which had been concluded. In the prior suit filed 16 December 2003, the plaintiff claimed USD 64,606.67 for cost overruns on a fixed-price contract, and the defendant counterclaimed for USD 24,245.55. Exhibit P18 in the prior suit listed various claims including Item 6 for USD 27,758.63 for man-power services in November-December 2003. The prior suit was heard in 2006-2008 and judgment delivered 30 September 2008. The court in the prior suit awarded the plaintiff only USD 16,213 which had been withheld, refused any additional payment beyond the contract price, and disallowed the defendant's counterclaim. The current suit was filed in 2007.

Issues

  1. Whether the instant claim was part of the claim in Civil Suit No. 818 of 2003 and therefore barred by res judicata
  2. What remedies are available to the parties

Orders

  • The plea of res judicata succeeds.
  • The plaintiff's suit is dismissed with costs.

Rules and key headnotes

Res Judicata — Matter Directly and Substantially in Issue in Former Suit
A claim is barred by res judicata under section 7 of the Civil Procedure Act where the same amount was included in an exhibit tendered in a prior suit between the same parties concerning the same project, even if the prior judgment did not expressly determine that specific item, because it was a matter which properly belonged to the subject of the earlier litigation and ought to have been raised then.
Res Judicata — Matters Which Might and Ought to Have Been Raised — Explanation 4
Under section 7 Explanation 4 of the Civil Procedure Act, any matter which might and ought to have been made a ground of defence or attack in a former suit is deemed to have been a matter directly and substantially in issue in such suit. Where a defendant files a counterclaim after a plaintiff's claim has become due, the plaintiff ought to have set up that claim in reply to the counterclaim, and failure to do so bars a subsequent suit for the same claim.
Res Judicata — Test for Application — Same Transaction
The test for res judicata is whether the plaintiff in the second suit is trying to bring before the court in another way and in the form of a new cause of action a transaction which has already been presented before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon. The plea applies not only to points upon which the first court was actually required to adjudicate but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.
Res Judicata — Relief Deemed Refused — Explanation 5
Under section 7 Explanation 5 of the Civil Procedure Act, any relief claimed in a suit which is not expressly granted by decree shall be deemed to have been refused for purposes of the doctrine of res judicata.

Legislation cited (1)

Cases cited (4)

  • Semakula v Magala & Others [1979] HCB 90
  • Kamunye and Others v The Pioneer General Assurance Society Ltd [1971] EA 263
  • Greenhalgh v Mallard [1947] 2 All ER 255
  • Jadva Karsan v Harnam Singh Bhogal (1953) 20 EACA 74

Full judgment

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

Hydro Engineering Services (U) Ltd v Thorne International Bioler Services Ltd (Civil Suit No. 594 of 2007) [2011] UGCommC 303 (21 September 2011)
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.