Things to consider before instituting a suit.

THINGS TO CONSIDER BEFORE INSTITUTION OF A SUIT.

1. Subject matter for the suit – whether movable or immovable. 

Movable Property –the suit most be field in the court within which the subject matter is situated.

Immovable property – where the property is suited.

Refer section 13 of the CPC

Pecuniary jurisdiction.

The place where the defendant resides or works for gain.

NB. Suit may either follow the defendant or the cause of action.

A company may be sued or sue where there is head office or branch or sub-office of the company.

Authorities

1. Francis Mwijage v Boniface Kabalemeza (1968) HCD n. 341

2. Sheikh Kassim Suleman v Ayubu Kamgila (1968) HCD n. 79

3. Walumu Jilala v John Mongo (1968) HCD n. 81

4. Edward Kalemela v Muyebe Rwenjege (1968) HCD n. 80

2. RES JUDICATA

Is a Common Law doctrine included in the Civil Procedure Code. It has two elements Res meaning matter and judicata meaning already adjudicated. 

Res judicata – bars subsequent litigations involving matters substantially and directly the same between the same parties or parties claiming on the same thing.

-Res Judicata applies only to civil litigations.

The doctrine of Res judicata is based on two well known maxims of Common law.

1. interest reipubicae est ut sit finis litium i.e. it is in the public interest that there be an end to litigation.

2. nemo debet bis vexari pro aedem causa i.e. no one should be in jeopardy twice on the same ground.

Elements of Res Judicata

Refer Section 9 of the CPC

1. There must exist two suits – one finally and conclusively determined and another pending.

2. These suits must be before courts of competent jurisdiction.

3. These suits must have been between same parties – or parties claiming under the same title.

4. The matters that are directly and substantially in issue between the parties in the pending suit must have also been directly and substantially in issue in the previously decided suit.

Effect of the doctrine

A person cannot raise an allegation which has previously been decided against him by a court of competent jurisdiction. A Judgement may be assailed by an appeal where a right of appeal exists, or by applying to have the judgment set aside where it was obtained fraudulently or collusively.

See: R.V. Hatchings (1881), 6 QB 300.

3. PARTIES TO SUIT

In every civil litigation there has to be a minimum of two parties opposing each other in respect of a dispute. In other words there has to be a lis inter parte with litis contestatio

The two parties to a suit are PLAINTIFF and DEFENDANT.

Plaintiff is the party who has a right to relief against the other party (defendant). The right of relief should not be a moral right but a legal right.

In simple civil suit there is a single plaintiff and a single defendant while in a complex suit there are various parties.

Parties to a Civil Suit

1. Proper Party 

Is that party without whom no effective decree can be issued? His presence is necessary because the court must either give a relief or a decree against him. Proper parties are parties who must be before the court.

2. Necessary Party

Is the one whose presence in court is desirable but whose absence does not render the decree ineffective Eg. In nuisance suit over a flow of sewage – a decree against the tenant can be affected through the landlord. The tenant is therefore a proper party because he will bring the landlord - he is therefore not a necessary party but a proper party and the landlord the necessary party. 

The person who will be compelled to do what is sought is the necessary party.

JOINDER OF PARTIES

General Principle: The CPC does not compel a party to combine the parties in pursuance of their rights nor does it prohibit joinder of the parties.

Joinder of Plaintiffs

Order 1 rule 1 CPC provides – More than one plaintiff can sue against one or more defendants if the right to relief claimed by them arises out of the same act or transaction or a series of acts or transactions and if separate suits were brought, common questions of law or fact may arise.

Refer: Yowana Kahere V. Lunjo Estates Ltd [1959] EA 319

Kanani V. Desai Uganda High Court Civil Case No. 469/1953

Points to Consider In Joinder of Plaintiffs

These are just practical and not legal considerations 

1. Parties (co-plaintiffs) must have common interests. Where it is likely to differ in interests it is advisable that each plaintiff should sue separately.

2. Co-plaintiffs should be represented by the same advocate to avoid prejudice to parties.

3. Joinder of plaintiffs shortens the conclusion of the case.

4. It is less expensive to sue jointly than separately in terms of mobilizing the parties and witnesses.

5. Suing jointly does not require presentation of third party notice against some of the plaintiffs.

6. Where the defendant is successful against some of the plaintiffs, there is a real likelihood that the successful plaintiff will be found to be jointly liable to the defendant.

Cause of action

Means all the facts which have to be proved by plaintiff in order to be entitled to a relief or the facts which are going to be proved in the court in order to obtain relief.