Bwamusana and 2 Others v Alai and Another (Miscellaneous Application 135 of 2023) [2024] UGHC 870 (16 August 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT HOIMA

# **MISCELLANEOUS APPLICATION NO.135 OF 2023**

## (Arising From Civil Suit No.0020 of 2023)

#### (Formerly of Msd-Ld-No.17/2009)

#### 1. BWAMUSANA FRANCIS

- 2. ASIIMWE JAMES - 3. MALIRWAKI SITAKIYO::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. ALAI DADA

2. THE REGISTERED TRUSTEES OF HOIMA CATHOLIC:::::RESPONDENTS

# Before: Hon. Justice Byaruhanga Jesse Rugyema

### **RULING**

### **Introduction**

- This Application is brought under Section 98 of the Civil Procedure $[1]$ Section 33 of the Judicature Act and O.5 rr.1 & 2 of the Civil Procedure **Rules** seeking the orders that: - a) That HCCS No 20 of 2023 (formerly Masindi HCCS No.17 of 2009) between the Applicants and the Respondents herein be reinstated and heard on merits. - b) That the order issued on the 15th day of November 2023 that closed HCCS No 20 of 2023 (formerly Masindi HCCS No.17 of 2009) be set aside - c) That the costs of the Application abide the outcome of the main suit. - The grounds in summary are that: $[2]$ - That HCCS No 20 of 2023 (formerly Masindi HCCS No.17 of 2009) a) against the 2nd Respondent has never been heard. - That the decree in Masindi HCCS No 513 of 2001 was against different $b)$ parties and could not therefore settle HCCS No 20 of 2023 (formerly Masindi HCCS No.17 of 2009)

- That the said order prematurely closed HCCS No 20 of 2023 (formerly $\mathsf{C}$ Masindi HCCS No.17 of 2009) without a hearing and violates the Applicants' right to a fair hearing. - That the submission of **Counsel Irumba Robert** that the $1^{st}$ $d$ ) Respondent had since passed on and withdrawn the appeal was between the $1^{st}$ and $2^{nd}$ Respondents and did not bind the Applicants herein. - That the withdrawal of **Counsel Irumba Robert** from the appeal left $e)$ the applicants with an opportunity to pursue their case against the $2^{nd}$ respondent alone. The Applicants intend to pursue their case against the $2^{nd}$ Respondent who was the successful party in HCCS No 513 of 2001. - That there was no appeal pending in the court of appeal against the $f$ ) $2nd$ Respondent. - That the Applicants are ready and willing to proceed with the case $g)$ once reinstated against the 2nd Respondent. - That the Applicants will suffer irreparable loss if the closed case is not $h$ ) reinstated and decided on merits. - That the Respondent shall not be prejudiced in any way by the grant $i)$ of the application. - In opposition to the Application, Rev. Fr. Dominic Ndugwa of the 2nd $[3]$ Respondent filed an affidavit in reply denying the Applicants' claims where he averred and contended as follows: - a) The $1^{st}$ Respondent instituted C. S No.513 of 2001 against the $2^{nd}$ Respondent & Anor as defendants and in 2009, the Applicants instituted C. S No.17 of 2009 (Now C. S No.20 of 2023) which Rugadya Atwooki, J stayed pending the outcome of C. S No.513 of 2001 since the subject matter was the same and the outcome would bind the Applicants. - b) That indeed, C. S No.513 of 2001 was adjudicated in favour of the $2^{nd}$ Respondent/defendant as the lawful owner of the suit land, a subject of the instant Application thus, settled C. S No.17 of 2009 (Now No.20) of 2023). - c) That the $2^{nd}$ Respondent obtained good title from the **Uganda Land Commission** and she has been in occupation of the land uninterrupted until when the Applicants came claiming that they own the suit land.

## **Counsel Legal Representation**

The Applicants were represented by Mr. Simon Kasangaki of M/s $[4]$ Kasangaki & Co. Advocates, Masindi while Mr. Nobert Alibankoha of M/s Alibankoha & Co. Advocates, Hoima appeared for the 1st Respondent. The $1st$ Respondent did not file an affidavit in reply and was in fact reported dead. The grounds of the Application are set out in an affidavit in support of the application deposed by the $1^{st}$ Applicant while the it is opposed by the affidavit of the 2nd Respondent on record. Both counsel filed and adopted their submissions in support and opposition to this application. I have read and considered the submissions on record in determining this application.

# **Consideration of the Application**

- $[5]$ The Applicants seek to reinstate Civil Suit No.17 of 2009 (Now C. S No.20 of 2023) which was closed after a decree was passed in civil suit No.513 of 2001 between the respondents, which this court deemed to settle their dispute. - $[6]$ Learned Counsel for the Applicants, Mr. Kasangaki Simon, submitted that the issue to be canvassed in the present application is a unique scenario that is not very common in civil judicial proceedings. It relates to an order sought to reinstate HCCS No. 20 of 2023 (formerly Masindi HCCS No.17 of 2009), which was closed after entering a decree passed in HCCS No. 513 of 2001, which proceeded after this court ordered a stay of the suit sought to be reinstated. It was observed by the court that the judgment and decree settled the dispute in the stayed suit and the file was closed. The Applicants, who are Plaintiffs in the settled suit, plead that they are dissatisfied with the order closing their file, contending that their dispute was not resolved and no judgment has ever been passed in their stayed suit. - It is also notable that the closure of the Applicants' file was done before $[7]$ they led evidence in their suit, and the proceedings in the matter ended without a hearing. The Applicants seek the indulgence of this court under the inherent powers to restore the suit on file and dispose of the same on merits after a hearing. Section 33 of the Judicature Act empowers this court to grant various reliefs to meet the ends of justice. This court wrongly closed the Applicants' file on the ground that the dispute therein was settled in another matter to which the Applicants were not parties. In the interest of justice, this court would be entitled to set aside the order closing the Applicants' file to safeguard their right to a fair hearing. - The law requires that a fair hearing must be afforded in all cases and in very $[8]$ clear and unambiguous terms. The right to a fair hearing connotes a hearing

by an impartial and disinterested tribunal; a proceeding that hears before it condemns, which proceeds upon inquiry, and renders judgment only upon consideration of evidence and facts as a whole. It includes the right to present evidence, to cross-examine, and to have findings supported by evidence. Lord Diplock stated in the House of Lords in O'Reilly Vs *Mackman [1983] 2 AC 237 at 276* regarding the right of a man as follows;

"But the requirement that a person who is charged with having done something which if proved to the satisfaction of a statutory tribunal has consequences that will or may, affect him adversely should be given a fair opportunity of hearing what is alleged against him and of presenting his own case is so fundamental to any civilized legal system that it is to be presumed that Parliament intended that a failure to observe it should render null and void any decision reached in breach of this requirement."

- The Applicants on July 8, 2009 filed the head suit, C. S No.17 of 2009 (Now $107$ C. S No.2023) against the Respondents for trespass to their land located at Kyamugenzi village, Kikerege Parish, Buhanika Sub County, Bugahya County, Hoima District measuring approximately 200 acres. The Applicants were also granted injunctive reliefs. The 1st Respondent who has since died earlier on had filed a separate suit vide Civil Suit No. 513 of 2001 against the 1st Respondent, Uganda Land Commission (ULC) and the Attorney General. The matters proceeded simultaneously over the same piece of land. The Applicants claimed the suit land and so are the parties to the second suit which was filed by the 1st Respondent. - [10] During the proceedings in the head suit before Rugadya Atwooki. J, it was ordered that the head suit, Civil Suit No.17 of 2009 be stayed pending the determination of Civil Suit No. 513 of 2001. The Applicants were however not party to Civil Suit No. 513 of 2001. The suit was eventually determined in favour of the 2nd Respondent against the 1st Respondent. The Applicants now wish to proceed with the 2nd Respondent who was the successful party in HCCS No. 513 of 2001 for enforcement of their property rights on the suit land measuring approximately 200 acres located at Kyamugenzi village, Kikerege Parish, Buhanika Sub County, Bugahya County, Hoima **District** which they customarily claim as their ancestral land - [11] The Applicants contended that their suit which was closed before hearing and without a reasoned decision about their rights and/or cause of action pleaded in HCCS No. 20 of 2023 (formerly Masindi HCCS No.17 of 2009), was irregular and occasioned them material injustice. The decision was a

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violation of their non-derogable right to a fair hearing. The matter in issue in both suits is not directly or substantially the same. The determination of one suit would not dispose of the rights of all the parties to both suits. The holding that the decision of the court in HCCS No 513 of 2001 binds the Plaintiffs in HCCS No 20 of 2023 (formerly Masindi HCCS No.17 of 2009) without affording them a hearing defeats the ends of justice and violates their inviolable right to a fair hearing. This renders the order closing their file before hearing void.

- Counsel for the Applicants, Mr. Kasangaki Simon, invited this court to $[12]$ consider whether the decision of this court settled this suit by looking at the application of the doctrine of stay of suits. It was his view that the test of applicability for a stay of suits is whether the decision in a former given suit would operate as res judicata (decided case) in the subsequent suit. If this happens, then the latter suit must be staved. - $[13]$ Counsel for the Applicants is of the view that it was erroneous on the part of court to stay the Applicants' suit pending the decision of the suit between the Respondents since the Plaintiffs in both suits were not litigating under the same head or claiming interest in the land under one title. The decree in the suit which was concluded does not bind the applicants who are plaintiffs in the suit which was stayed claiming title to the suit land differently. That the best court should have done was to consolidate the suits to avoid a multiplicity of suits under Order 11 rule 1 of the Civil Procedure Rules. In his view, upon consolidation, it was possible to render one decision making provision for the rights of all parties to the consolidated suits. That this was not done, and when not redressed, prejudiced the Applicants. He relied on Ankod Vs Philipo Malinga SCCA No. 6 of 1987 reported from 1992-1993 HCB, 91 and Kakuuma Vs Ntale & Anor, HC Revisional Cause No.1 of 2013. - In the present case, I agree that if this court had consolidated the two suits $[14]$ and delivered one judgment, it would have resolved all the disputes and varying claims of the different parties in the two suits over the suit land. I don't however agree that the stay of the Applicants' suit was a misdirection of law and fact. - [15] The 1st Respondent/plaintiff Alai Dada (deceased) filed C. S No.513 of 2001 against the $2nd$ Respondent, the Registered Trustees of Hoima Catholic Diocese. & 2 Ors for inter alia, recovery of the suit land situate at Kyamugenzi, Kikerege, Hoima District. The 1st Respondent/plaintiff's claim was that he is the customary owner of the suit land which he inherited $\mathcal{L}^{\circlearrowleft}$ from his father, Karim Aine in the 1970s. The 2nd Respondent/Defendant on $\mathcal{F}_{\mathcal{C}}\otimes\mathcal{F}_{\mathcal{C}}\otimes\mathcal{F}$ $\lambda_{\rm{max}}$ 1.5 | Page 1. . . . . . $\mathbf{r} = \mathbf{r} \times \mathbf{r}$ $\lambda = a^{-\alpha}$ $\perp$ $\perp$ $\mathcal{X}=\bigoplus_{n\in\mathbb{N}}$ $\mathcal{L}^{\mathcal{L}}_{\mathcal{L}} = \mathcal{L}^{\mathcal{L}}_{\mathcal{L}}$

$\mathcal{L} = -\infty$

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att fraud 1 to 1

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the other hand denied the $1$ st Respondent/plaintiff's claims and contended that he acquired the suit land lawfully and she is the registered proprietor thereof vide LRV 1850, Bugahya Block 20, plot 7 land at Butema, Buhanika, Hoima District.

- [16] The Applicants on July 8th 2009, after a period of 8 years, filed **C. S No.17 of** 2009 (Now C. S No.20 of 2023) against the Respondents for trespassing over the same subject matter that the $2^{nd}$ Respondent's title was illegally procured over land which was customarily occupied by the Applicants. - [17] Rugadya Atwooki, J. stayed proceedings in C. S No.17 of 2009 (Now No.20 of 2023) pending the outcome of C. S No.513 of 2001 because the subject matter was the same and the outcome would bind the Applicant. The C. S No.513 of 2001 instituted against the 2nd Respondent & 2 Ors was adjudicated in favour of the $2^{nd}$ Respondent as the lawful owner of the suit land in the following terms:

"Fraud must not only be pleaded, but it must be proved... $\ldots$ I did not find fraud proved in this case....the 1st defendant $[2nd Respondent]$ did not acquire the land title to suit land through fraud. The $1^{st}$ defendant [ $2^{nd}$ Respondent] acquired the title to the suit land validly."

It is clear from the pleadings of C. S No.513 of 2001 and C. S No.17 of 2009 (Now C. S No. 20 of 2023) where the $2^{nd}$ Respondent was a defendant, the plaintiffs in both suits claimed as customary owners of the same subject matter land. The 2 suits have different plaintiffs but the defendants are the same. The suit land in one of the suits, C. S No.513 of 2001 was decreed to the $2^{nd}$ Respondent.

[18] In the premises, I find that the Applicants' filing of C. S No.17 of 2009 (Now C. S No.20/2023) against the $2^{nd}$ Respondent before the conclusion of the earlier suit, C. S No.513/2001 against the same $2^{nd}$ Respondent premised on the same facts and seeking for the same remedies under the same court offended the lis pendens rule i.e as per Black's Law Dictionary (8th Edn), a "pending suit or action". Under S.6 CPA, it is provided thus;

"No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit....where the suit or proceeding is pending in the same or any other court having jurisdiction $\cdots$ in Uganda to grant the relief claimed." $\mathcal{N} = \mathcal{N} \times \mathcal{N} \times \mathcal{N} \times \mathcal{N}$

[19] In view of the foregoing, since the subject matter in issue in C. S No.17/2009 was directly and substantially in issue in the previously instituted C. S No.513 of 2001, I find that under S.6 CPA, Rugadya Atwoki. J, rightly stayed

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61 Page.

Hall I magan

proceedings in C. S No.17 of 2009 pending the outcome of C. S No.513 of 2001. The outcome of C. S No.513 of 2001 was a judgment in rem decreeing the suit land to the $2^{nd}$ Respondent. A judgment in rem is one in which the judgment of the court determines the title to the property and the rights of the parties, not merely as between themselves, but also as against all persons at anytime dealing with them or with the property upon which the court had adjudicated, see Black's Law Dictionary, 9th Edition. The definition and effect of a judgment in rem was held in **Marteens & Ors Vs** South African National Parks, Case No. C 117 of 2001 [2004] 25 ILJ 2222 thus:

"A Judgment in rem is a judgment which is conclusive as against all the world in whatever it settles as to the status of a person or property, or as to the right or title to the property and as to whatever disposition it makes of the property itself, or of the proceeds of its sale. All persons regardless whether or not they are parties to any legal proceedings are bound by a judgment in rem and as such are estopped from averring that the status of persons or things, or the right to title to property is other than what the court has by its judgment declared or made it to be."

See also Lazarus -Barlow Vs Regent Estates Co. Ltd [1949] 2 KB 465 at 475, [1949] 2 All ER 118 at 122. Similarly, in the instant case, since Judgment in **C. S No.513 of 2001** amounted to a judgment in rem decreeing the suit land to the 2nd Respondent, logically it was binding as against all parties to the suit and third parties, including the Applicants, and conclusive as against the whole world that the entities ordered as affected by order of court were entitled or disentitled, as the case may be, regardless of whether the Applicants were parties to the suit or not. Court having adjudicated the issue of ownership of the suit land and the legality or validity of the $2^{nd}$ Respondent's title of the suit land, that issue could not again be adjudicated under C. S No.17 of 2009 (Now 20 of 2023) the Applicants seek to restore.

- Both Section 98 CPA and S.17(2) of the Judicature Act relied upon by the $[20]$ Applicants vests this court with inherent power and enjoins it, inter alia, to curtail abuse of court process while **S.33 of the Judicature Act** empowers court in its administration of justice, as much as possible, avoid multiplicity of suits. Inherent powers of court are to be exercised judiciously. - [21] In the instant case, this court stayed one of the suits to avert the danger of Judicial officers that may handle the 2 matters differently arriving at different and perhaps conflicting decisions in cases of the same facts. This

court rightly stayed and closed C. S No.17 of 2009 to avoid abuse of court process. The proceedings in C. S No.17 of 2009 were stayed in favour of C. S No.513 of 2001 whose judgment settled the claim in C. S No.17 of 2009. The Applicants being aggrieved by the decision, the only remedy to them appear to be under S.82 CPA, an application for review but of course subject to satisfaction of the conditions under **0.46 CPR**.

[22] For the above reasons, I find that this application lacks merit and it is accordingly dismissed with costs to the 2nd Respondent.

Dated at Hoima this 16th day of August, 2024.

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............................... **Byaruhanga Jesse Rugyema JUDGE**