Wakilii

Mavid Pharmaceuticals Ltd v Roya Group of Pakistan (Civil Suit No. 319 of 2009)

High Court · [2013] UGCOMMC 197 · 2013 Preliminary Objections Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objections to the plaintiff's suit raised by the defendant after completion of pre-trial conferencing
Decision
Preliminary objections dismissed; main suit to proceed to trial

Observed later treatment

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Holding

The court held that the plea of res judicata could not be determined without evidence as the affidavit in opposition to the winding up petition was not on record and there were insufficient materials to establish that the claim in the present suit was the subject matter of the consent judgment in Company Cause No. 19 of 2009. The court found the plaint disclosed a cause of action. The preliminary objections were overruled with costs.

Outcome

Preliminary objections dismissed; main suit to proceed to trial

Facts

The plaintiff sued the defendant for breach of contract claiming US$62,093.79 for goods paid for but not used, plus freight and storage charges. The defendant had previously filed Company Cause No. 19 of 2009 to wind up the plaintiff for a debt of US$23,439.92. The plaintiff opposed the winding up petition, claiming the defendant supplied raw materials for Semodex ointment which the National Drug Authority rejected. The winding up petition was settled by consent judgment on 4 November 2009 requiring payment of the debt. The present suit was filed on 29 August 2009 before the consent judgment. The defendant raised preliminary objections that the suit was res judicata and disclosed no cause of action.

Issues

  1. Whether the plaintiff's suit is res judicata on the ground that the claim was directly and substantially in issue in Company Cause No. 19 of 2009 and resolved by consent judgment.
  2. Whether the plaintiff's plaint discloses a cause of action against the defendant.
  3. Whether, on the basis of evidence agreed in the joint scheduling memorandum, the plaintiff has a cause of action against the defendant.

Orders

  • Preliminary objections overruled with costs.
  • Question of whether the suit is res judicata stayed for final determination of the main suit after adducing material evidence.
  • Matters raised in the objection held to have been prematurely raised and overruled without prejudice to any point of law being raised in final submission on the basis of admitted evidence.

Rules and key headnotes

Res Judicata — Requirements — Need for Evidence of Prior Determination
A plea of res judicata under section 7 of the Civil Procedure Act requires proof that the matter was alleged by one party and either denied or admitted by the other in the former suit, as reflected in the pleadings; where the affidavit in opposition to the former suit is not on record and there are insufficient materials to establish that the claim was in controversy and determined, the plea cannot be resolved without evidence.
Res Judicata — Consent Judgment — Effect on Separate Proceedings
A consent judgment in a winding up petition for a liquidated debt does not bar a separate suit for damages for breach of contract filed before the consent judgment where the consent judgment makes no reference to the separate suit and does not determine the claims in that separate suit.
Cause of Action — Test for Disclosure — Consideration of Plaint Alone
In determining whether a plaint discloses a cause of action under Order 7 rule 11 of the Civil Procedure Rules, only the plaint can be looked at; the defence is not considered at this stage and the court proceeds on the assumption that everything alleged in the plaint is true.
Cause of Action — Elements Required — Right, Violation, Responsibility
For a plaint to disclose a cause of action, it must disclose that the plaintiff enjoyed or enjoys a right, that the right was violated, and that the defendant is responsible for the violation.
Preliminary Points of Law — When Appropriate — Need for Agreed or Uncontested Facts
A point of law should be determined preliminarily only where it can be decided fairly and squarely on facts agreed or not in issue on the pleadings; where facts need to be proved or there is doubt as to what the relevant facts are, the point of law should await trial by adducing evidence.

Legislation cited (6)

Cases cited (12)

  • Chris Tushabe v Greenland Bank (in liquidation) (Civil Suit No. 364 of 2010)
  • Semakula v Magala and two others [1979] HCB 90
  • Kamunye and others v The Pioneer General Assurance Society Ltd [1971] EA 263
  • Karia and another v Attorney General and others [2005] EA 83
  • Tororo Cement Company Ltd v Frokina International Ltd (Civil Appeal No. 2 of 2001)
  • Auto Garage v Motokov [1971] EA 514
  • Administrator General v Bwanika James and 9 Others (Civil Appeal No. 7 of 2003)
  • Ismail Serugo v Kampala City Council and the Attorney General (Constitutional Appeal No. 2 of 1998)
  • Major General David Tinyefunza v Attorney General of Uganda (Constitutional Appeal No. 1 of 1997)
  • Jeraj Shariff v Fancy Stores [1960] EA 374
  • NAS Airport Services Limited v The Attorney-General of Kenya [1959] 1 EA 53
  • Cumber International Ltd v National Bank of Kuwait (1981) 1 WLR 1233

Full judgment

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

Mavid Pharmaceuticals Ltd v Roya Group of Pakistan (Civil Suit No. 319 of 2009) [2013] UGCommC 197 (22 November 2013)
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.