Three Ways Shipping Services (Group) Ltd v MTN (U) Ltd (Miscellaneous Application No. 103 of 2015)

Observed later treatment

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The court held that res judicata does not bar a subsequent suit where the earlier suit was struck out on a preliminary point of law without consideration of the merits. Although HCCS No. 503 of 2012 and HCCS No. 423 of 2014 arise from the same facts, the earlier suit was struck out only for illegality of the Memorandum of Understanding, not on the merits. The presence of additional parties in the new suit and the pending appeal do not bar the hearing of HCCS No. 423 of 2014.

Outcome

Application to strike out HCCS No. 423 of 2014 dismissed; suit to proceed

Facts

MTN Uganda sued Three Ways Shipping Services in HCCS No. 503 of 2012 for USD 3,827,820.71 arising from fictitious invoices. The parties had entered into a Memorandum of Understanding under which Three Ways agreed to refund USD 4,000,000. At a scheduling conference, Three Ways raised a preliminary objection that the Memorandum was illegal. On 23 May 2014, the court struck out the suit, finding the Memorandum illegal, without addressing the merits. MTN appealed that decision. On 23 June 2014, MTN filed a fresh suit, HCCS No. 423 of 2014, claiming money had and received or fraudulent obtaining, not based on the Memorandum but on the fictitious invoices themselves. The new suit added two additional defendants. Three Ways applied to strike out the new suit as res judicata and abuse of process.

Issues

1. Whether HCCS No. 423 of 2014 is barred by res judicata following the striking out of HCCS No. 503 of 2012.
2. Whether maintaining HCCS No. 423 of 2014 while pursuing an appeal against the decision in HCCS No. 503 of 2012 constitutes abuse of court process.

Orders

• Application dismissed.
• Preliminary objection that HCCS No. 423 of 2014 is res judicata overruled.
• Costs in the cause.

Rules and key headnotes

Legislation cited (6)

• Civil Procedure Act s.7
• Civil Procedure Act s.98
• Civil Procedure Rules Order 6 r.30
• Civil Procedure Rules Order 52 r.1
• Civil Procedure Rules Order 52 r.2
• Civil Procedure Rules Order 52 r.3

Cases cited (2)

• Silver Springs International Hotel v Hotel Diplomat Ltd (Civil Suit No. 227 of 2011)
• Isaac Bob Busulwa v Ibrahim Kakinda [1979] HCB 179

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Three Ways Shipping Services Ltd v Mtn Uganda Ltd (Miscellaneous Application No. 1336 of 2017)

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