Wakilii

Mario Ali vs Opoka Santo (Miscellaneous Application No. 14 of 2022)

High Court · [2022] UGHC 20 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory application arising from civil suit, seeking determination of preliminary issue of res judicata before trial
Decision
Application dismissed with issue of res judicata reserved for determination at trial

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that a plea of res judicata raising contested facts about the extent of land adjudicated in a prior suit cannot be determined as a preliminary issue without evidence. Where the parties dispute whether the earlier adjudication covered the same land as the present suit, the issue is one of mixed law and fact requiring trial evidence rather than resolution on pleadings alone.

Outcome

Application dismissed with issue of res judicata reserved for determination at trial

Facts

The applicant, defendant in civil suit No. 13 of 2021, sought determination of a preliminary issue that the suit was res judicata. He claimed that in 2006 the respondent sued him in the Local Council II Court over land, which the applicant won. The respondent appealed to LC III Court which allowed the appeal, but on further appeal the Chief Magistrate overturned the LC III decision and affirmed the LC II Court ruling. The applicant was put in possession of the suit land. The respondent then filed the present suit in 2021 over the same land. The respondent opposed, arguing that the earlier suit concerned only 4 acres of land which he lost and conceded, whereas the present suit concerns 57 acres from which the applicant wrongly evicted him. The LC II Court wrote letters clarifying that only 4 acres were adjudicated while the respondent had been using 47.9 acres not subject to the earlier dispute. The applicant contests the authenticity of these letters, alleging they are forged.

Issues

  1. Whether court is in position to determine the plea of res judicata on the basis of the pleadings and the material before court
  2. If so, whether civil suit No. 13 of 2021, lodged by the Respondent, is res judicata

Orders

  • Application dismissed.
  • Issue of res judicata postponed to be determined after recording evidence at trial of the head suit.
  • Costs of the application to abide the outcome of the trial of civil suit No. 013 of 2021.

Rules and key headnotes

Preliminary Objections — Proper Procedure for Raising Points of Law
The correct provision for bringing an application for resolution of a preliminary point of law is Order 6 rule 28 of the Civil Procedure Rules, not Order 15 rule 2. Order 15 rule 2 guides the court on how to deal with issues of law once the court has been properly moved under Order 6 rule 28.
Preliminary Objections — Discretion to Hear Before or After Evidence
A court has discretion whether to determine a preliminary objection before hearing evidence or to postpone its decision to be incorporated in its final judgment. The exercise of discretion depends on the facts and circumstances of each case, and a court is not in error for opting to postpone the decision unless material prejudice is caused to either party or the decision was reached unjudicially.
Preliminary Objections — Mixed Questions of Law and Fact
Where an issue is of mixed law and fact and its determination would require evidence, the issue cannot be tried as a preliminary issue. A preliminary objection raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained.
Res Judicata — Need for Evidence Where Facts Contested
Where res judicata is pleaded as a defence and the issue is contested, the proper practice is that a trial court should try that issue and receive evidence to establish that the subject matter of the dispute between the parties has been litigated upon between the same parties or parties through whom they claim. The plea cannot be determined on pleadings alone where material facts are in dispute.
Res Judicata — Nature and Requirements
Res judicata is not a pure question of law but a mixed question of fact and law. It must be specifically pleaded and the person relying on it must place before court all material particulars sufficient to give a finding whether the particular case is barred by res judicata.

Legislation cited (6)

Cases cited (13)

  • Ganatra v Ganatra [2007] 1 EA 76
  • Basangira Building Contractors (1977) Ltd v Attorney General (High Court Civil Suit No. 330 of 2009)
  • Allen Nsibirwa v National Water and Sewerage Corporation (Civil Suit No. 220 of 1995)
  • Kamuhangire Gerald v Kashumba Miisi (Civil Appeal No. 9 of 1998)
  • Makerere University v Omubejja Namusisi Farida Naluwembe Namirembe Bwanga (Miscellaneous Application No. 658 of 2013)
  • Onzia Elizabeth v Shaban Fadul (Civil Appeal No. 0019 of 2013)
  • Hwan Sung Limited v M and D Timber Merchants and Transporters Limited (Civil Appeal No. 02 of 2018)
  • Attorney General v Maj. General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Everett Vs. Ribands
  • Ariko Johnny De West v Omara Yuventine & Electoral Commission (Election Petition Appeal No. 41 of 2021)
  • Mansukhlal Ramii Karia & another v Attorney General (Civil Appeal No. 20 of 2002)
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696
  • Ramdayal Umraomal Vs. Pannalal Jagannathji, AR 1979 153, at p. 157

Full judgment

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Mario Ali vs Opoka Santo (Miscellaneous Application No. 14 of 2022) [2022] UGHC 20 (10 October 2022)
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.