RES JUDICATA

Res judicata connotes an end to litigation. After a plaintiff has brought a matter in court
and it is finally determined, he cannot bring the same issue to another court of the same
jurisdiction. He can only bring another suit if aggrieved by way of appeal.

Alternatively, the plaintiff can ask the same court for a review. Under res judicata, there
must an end to litigation.

What is res judicata?

Res judicata is defined in Black’s Law Dictionary [8th Edn, P.1336] as:

“[A thing adjudicated]. 1. An issue that has been definitely settled by judicial
decision. 2. An affirmative defense barring the same parties from litigating a secong
lawsuit on the same claim, or any other claim arising from the same transaction or
series of transactions and that could have been- but was not- raised in the first suit.”

Simply put, the Latin maxim res judicata pro veritate accipitur means that a thing
adjudicated is received as the truth. In other words, a judicial decision is conclusive until
reversed, and its verity cannot be contradicted.

Res judicata is a plea against the continuance of a suit on grounds that the matters in the
suit have already been effectively adjudicated on by a competent court of law. It is a form
of estoppel.

Section 7 of the Civil Procedure Act provides that:

“No court shall try any suit or issue in which the matter directly and substantially in
issue has been directly and substantially in issue in a former suit between the same
parties, or between parties under whom they or any of them claim, litigating under
the same title, in a court competent to try the subsequent suit or the suit in which
the issue has been subsequently raised, and has been heard and finally decided by
that court.”
The section offers the following explanations:
(1) The expression “former suit” shall denote a suit which has been decided
prior to the suit in question whether or not it was instituted prior to it.
Former suit is a suit which has been decided. It does not matter when it was
filed. What really matters is whether there is a judgment in the other suit for
it to qualify as a former suit.

(2) For the purposes of this section, the competence of a court shall be
determined irrespective of any provision as to right of appeal from the
decision of that court. This note deals with the expression competent court.
Regardless of whether or not you can appeal from that court does not
detract from that court’s competence.

(3) The matter above referred to must in the former suit have been alleged
by one party and either denied or admitted, expressly or impliedly, by the

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 other. This explanatory note deals with the matter being “substantially in
issue”. The matter must have been denied or accepted when the question
was asked.

(4) Any matter which might and ought to have been made a ground of defence or
attack in the former suit shall be deemed to have been a matter directly and
substantially in issue in that suit. This expounds on number 3 and the question
should either have been in issue or ought to have been in issue in such suit. Under
this note, all other things which you want to say which could have been brought in
issue or ought to have been brought in issue are also res judicata.

(5) Any relief claimed in a suit, which is not expressly granted by the decree, shall, for
the purposes of this section, be deemed to have been refused.

(6) Where persons litigate bona fide in respect of a public right or of a private right
claimed in common for themselves and others, all persons interested in that right
shall, for the purposes of this section, be deemed to claim under the persons so
litigating.”

For the doctrine of res judicata to apply, there must be three essential elements:
(a) An earlier decision on the issue;
(b) A final judgment on the merits, and
(c) The involvement of the same parties, or parties in privity with the original parties.

In the case of Robert Mwesigwa & Another v Bank of Uganda HCCS No. 588 of 2003,
Justice Yokoramu Bamwine observed that:
“Res judicata presupposes 4 main things:
1. that there are 2 opposing parties.
2. that there is a definite issue between them.
3. that there is a tribunal competent to decide the issue; and
4. that within its competence, the tribunal has done so.

Once such matter or issue between the parties has been litigated and decided, it cannot
be raised again between the same parties, but other parties are not so bound.”

In Karia and another v Attorney-General and others [2005] 1 EA 83 (SCU), Tsekooko, JSC,
observed as follows:

“I will first discuss the meaning, operation and effect of the plea of res judicata. The
respondents pleaded this defence on the basis of the decision of the Court of Appeal
in civil appeal number 36 of 1996 (supra).
The doctrine of res judicata is set out in section 7 of the Civil Procedure Act in the
following words:
“No Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former
suit between the same parties, or between parties under whom they or any
of them claim, litigation under the same title, in a Court competent to try

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 such subsequent suit or the suit in which such issue has been subsequently
raised, and has been heard and finally decided by such Court.”
The provision indicates that the following broad minimum conditions have to be
satisfied:
1. There have to be a former suit or issue decided by a competent Court.
2. The matter in dispute in the former suit between parties must also be
directly or substantially in dispute between the parties in the suit where the
doctrine is pleaded as a bar.
3. The parties in the former suit should be the same parties, or parties
under whom they or any of them claim, litigating under the same title.

In High Court civil case number 553 of 1966 (Karshe v Uganda Transport Limited)
cases on Civil Procedures and Evidence Volume 3 page 1, Sir Udo Udoma, former Chief
Justice of Uganda, put it this way:
“Once a decision has been given by a Court of competent jurisdiction
between two persons over the same subject matter, neither of the parties
would be allowed to relitigate the issue again or to deny that a decision had
in fact been given, subject to certain conditions.”
In my opinion this is a correct summary of section 7”.

Rationale for the Doctrine

The rationale is that there must be an end to litigation. Every matter should be tried fairly
once and having been so tried should come to an end forever between the parties.

In the case of Semakula v Magala & others [1979] HCB 90, the Court of Appeal for Uganda
(as it then was) held that in determining whether or not a suit is barred by res judicata,
the test is whether the plaintiff in the second suit is trying to bring before the Court in
another way in the form of a new cause of action a transaction which had already been
presented before a Court of competent jurisdiction in earlier proceedings and which has
been adjudicated upon. If this is answered affirmatively, the plea of res judicata will then
apply not only to all issues upon which the first Court was called upon to adjudicate but
also to every issue which properly belonged to the subject of litigation and which might
have been raised at the time through the exercise of due diligence by the parties.

In Kotak Ltd v Kooverji and Others (1969) EA 295, was said that:
“Once it is decided that a particular rule of law is applicable to a certain factual
situation between the parties, then as far as these parties are concerned, the fact of the
applicability of the rule is res judicata and can only be challenged on appeal”.

Section 7 uses the phrase litigating under the same title. The test of res judicata was
stated by Law, V.P. in the case of Kamunye v Pioneers Assurance Ltd [1971] EA 263 in the
following terms:
“The test whether or not a suit is time barred by res judicata seems to me to be—is
the plaintiff in the second suit trying to bring before the court, in another way and in
the form of a new cause of action, a transaction which he has already put before a
court of competent jurisdiction in earlier proceedings and which has been
adjudicated upon. If so, the plea of res judicata applies not only to points upon

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 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 Greenhalgh v Mallard,
[1947] All E.R. 255. The subject matter in the subsequent suit must be covered by the
previous suit, for res judicata to apply Jadva Karsan v Harnam Singh Bhogal (1953),
20 E.A.C.A. 74.”

In Kiirya v East African Railways, the plaintiff sued for wrongful dismissal and was
awarded damages. He then sued for pension. It was said that the matter was res judicata.
Explanatory note number 4 was applied.

Dismissal on a preliminary point not based on the merits is not res judicata (a bar to
subsequent litigation). There must be a judgment based on the merits.

STAY OF SUIT
Section 6 of the Civil Procedure Act prohibits a court from trying a matter which is
already in issue in a previously instituted suit. This is called the lis pendens rule.

The explanation to that section is to the effect that the lis pendens rule applies only
where the other suit is in Uganda.