Gabigogo v Namwanje & 6 Others (Civil Suit 39 of 2015) [2023] UGHC 367 (5 May 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA CIVIL SUIT NO.39 OF 2015**

**GABIGOGO RUKIDI MOSES:::::::::::::::::::::::::::::::::::PLAINTIFF VERSUS**

**1. NAMWANJE MARIA PAULINA**

**2. SANSA MICHAEL THOMAS**

**3. BWEYINDA WINYI RICHARD**

**4. MUTAZINDWA RUWAGA**

**5. NDAULA FRANCIS**

**6. NDAULA DAGAROUS**

# 7. **GABIGOGO DENIS DERRICK:::::::::::::::::::::::::::::DEFENDANTS** *Before; Hon. Justice Victoria Nakintu Nkwanga Katamba*

# **RULING**

This ruling arises from a preliminary objection raised by the Defendants. They raise an objection that the suit before this Court is barred by law for being res judicata under Section 7 of the Civil Procedure Act Cap 71.

#### **Background.**

The Plaintiff brought this suit against the Defendants jointly for trespass to land comprised in Kooki Block 24 Plot 15. The Plaintiff also sought general damages, mesne profits, an eviction order, a permanent injunction, a demolition order for illegally erected structures and planted crops. The Plaintiff also sought a restoration order for destruction caused on land.

It was the Plaintiff's case that he is the proprietor of the former principal residential holding on land comprised in Kooki Block 24 Plot 15 which previously belonged to the late Enock Gabigogo Kiiza who died intestate. It was further the Plaintiff's case that he acquired proprietorship on account of being a customary heir of the late. It is then alleged that at the time of his death, there was no person entitled to occupy the principal residential holding of the late Enock Gabigogo Kiiza and as a result, it devolved to the Plaintiff as customary heir. The Plaintiff also states that the Court granted him letters of Administration to the estate of the late in 1993 and he duly distributed the property


to the beneficiaries of the estate. That around 2010, the 2nd and 3rd Defendants and others who were party to civil suit No.59 0f 2010, demolished the house on the suit land. The 1st, 2nd, 6th and 7th Defendants also erected fences. Further, the 2nd Defendant went to the land and started preparing soil for making bricks in 2010. The Plaintiff further alleges that the process was stopped but resumed in 2015 by the 2nd, 4th and 6th Defendants and this has greatly impacted the soil on the land. Since July 2014, the 2nd , 4 th and 6th Defendants have been camping on the piece of land yet they have no right to be there. That the 2nd Defendant has been cultivating on the land and has over 4000 coffee plants on the land. It is further alleged that the 1st and 2 nd Defendant rent out the land for profit. It was the Plaintiff's case that during the deceased's life time, the land belonged to the deceased and no one other person.

The Defendants filed a joint Written Statement of Defence wherein they denied the Plaintiff's claims. In further defence, it was stated that the suit is frivolous and vexatious and a waste of Court's time because the same issues were resolved in HCCS. No.59 of 2010 which was formally HCCS. No.10 of 2008. It was further stated that the suit land is part of the estate of the late Prince Enock Gabigogo and the Defendants are entitled to it as beneficiaries and are therefore not trespassers on the suit land. That the Plaintiff has used the land disregarding the interests of the beneficiaries. That the Plaintiff got himself registered as the proprietor fraudulently.

The Defendants also filed a counter claim against the Plaintiff wherein they sought a declaration that the suit land forms part of the estate of the late Prince Enock Gabigogo and that the Defendant got himself registered on the land fraudulently. They also sought a cancellation of the Plaintiff's names from the certificate of title and that the Plaintiff's names upon cancellation be replaced with the names of the 1st and 2nd Defendants. The Counter claimants alleged that the Plaintiff got himself fraudulently registered on the certificate of title to suit land in 1995, a fact the Counter claimants only discovered in 2007.

In reply to the counterclaim, the Plaintiff/ Defendant in the counterclaim stated that the counter claimants are not entitled to the reliefs sought. The Plaintiff denied fraud on his part when he got himself registered on the certificate of title. He maintained that none


of the counter claimants is entitled under the law to stay in the principal residential holding of the deceased.

Before Court would proceed with the hearing, the Defendants raised a preliminary objection which is the effect that the current suit is barred by law for being res judicata.

#### **Representation.**

The Plaintiff was represented by Justine Nakajubi while the Defendants were represented by Ssozi Sharif.

#### **Submission for the Defendants in support of the Preliminary objection.**

It was Counsel's submission that the suit is barred by the principle of res judicata under Section 7 of the Civil Procedure Act Cap 71. It was further submitted that the current subject matter in this suit was the same subject matter in HCCS. No. 59 of 2010 and the Court in the latter case resolved the issue though in HCCS. No.59 of 2010, the Plaintiff was the Defendant and the 1st, 2nd and 3rd Defendants were Plaintiffs in the suit. It was then submitted that the Defendants in this suit sued the Plaintiff vide HCCS. No.59 of 2010 for revocation of Letters of Administration granted to the Plaintiff on account of fraud. The Defendant in that case filed a defence and a counter claim which is the same as the current subject matter before this Court, that is; the principal residential holding of the late Prince Enock Gabigogo. That he challenged the 1st Defendant being a widow of the late. It was submitted that the matters as raised by the Plaintiff in this suit were heard and determined by this Court in a previous suit. It was also submitted that the issue of trespassing was also dealt with in the previous suit. It was counsel's prayer that this suit be dismissed with costs.

#### **Submission in reply.**

It was submitted for the Plaintiff that the issues for resolution in the current suit are different from those that were resolved in HCCS. 59 of 2010. It was further submitted that the current suit is embedded in nuisance, destruction of property and unlawful and illegal acts against the property and person of the Plaintiff and that if there are any issues in the current plaint that were determined in previous suits, they should be severed off.


## **Rejoinder.**

Counsel referred the Court to Paragraph 5(iii) of the Plaint in this suit and stated that the current suit is not embedded in nuisance but rather trespass which was dealt with in HCCS. 59 of 2010. Counsel reiterated the fact the issue of the principal residential holding of the late and the Plaintiff's claim to it was already dealt with.

## **Determination of the Preliminary Objection.**

A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit (**see** *Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696)*.

A preliminary point of law raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It is thus based on a commonly accepted set of facts as pleaded by both parties. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. Preliminary objections relate to points of law, raised at the outset of a case by the defence without going into the merits of the case. In any preliminary objection therefore, there is no room for ascertainment of facts through affidavit oral evidence.

# **Whether the suit is barred under the principle of Res judicata.**

*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.*

In the case of *Boutique Shazim Ltd versus Bhatia and Another, CACA. No.36 of 2007***,** it was held that the test for res judicata is whether the plaintiff in a second suit or subsequent action is trying to bring before the Court in another way and in the form of a new cause of action which he or she already put before a Court of competent jurisdiction in earlier proceedings and which has been adjudicated upon, and that if that is the case, then the suit is res judicata.


In *Lt. Kabarebe versus Major Prossy Nalweyiso, CACA. No.34 of 2003,* it was held that a person shall not be heard to say the same thing twice in two or more successive litigations.

I have carefully considered the Plaint in this Suit and decisions of this Court in Civil Suit No.59 0f 2010 and Civil Suit No.01 0f 2011.

It was submitted for the Plaintiff that the current suit is embedded in nuisance, destruction of property and unlawful and illegal acts against the property. The property being the suit land comprised in Kooki Block 24 Plot 15 and the structures there on.

I am in agreement with Counsel for the Defendants that the suit is concerned with the tort of trespass. It is my opinion that even though the Parties have differing stand points on what the suit is based on, the Plaintiff cannot be successful in this suit whether in nuisance or trespass to land or property, if it was already determined that the Defendants have a right to be on the suit land or utilize the property there on in a previous suit. That is, the Defendants can only be found liable in trespass to land or property or nuisance if they have no bonafide claim of right to the suit land. According to the Plaint, the Plaintiff alleges that he is the owner of the suit land and the Defendants are camping on the suit land illegally while in their defence, the Defendants aver that the suit land belongs to the estate of the late Prince Enock Gabigogo and they are beneficiaries to the estate and that they are therefore on the suit land legally.

It is my observation that the issue of a right to occupy and utilize the suit land is directly in issue and if this Court was to consider this suit and resolve that the Defendants have no right to lay claim to the suit land, upon proof of acts of nuisance, trespass to land and property against the Defendants by the Plaintiff, the Defendants would be found liable. However, in consideration of this Court's decision in HCCS. No. 59 of 2010 delivered by Hon. Lady Justice Margaret C. Oguli Oumo, I note that the first 3 Defendants in this suit were party to Civil Suit No.59 of 2010 as part of the Plaintiffs who claimed to be beneficiaries to the estate of the late Enock Gabigogo which had been mismanaged to their detriment by the Defendant who is the Plaintiff in this current suit. It was also not in dispute that the Plaintiffs and the Defendant were related.


It is also my observation that the issue of the right to utilize and occupy the suit land by the beneficiaries was considered and resolved. Among other issues in the suit, the issue of the right to occupy the suit land which comprises of the principal residential holding of the late Gabigogo and trespass thereon by the beneficiaries was considered when the Court was resolving whether the Plaintiffs were trespassers on the suit property. The Defendant in his counter claim in HCCS. No.59 of 2010 complained of illegal construction of buildings on the suit land. He also sought an eviction order against the Plaintiffs.

Clearly on page 18 Paragraph 7 of the Judgement, the Learned Judge observed that the 2 nd Plaintiff in that suit, who was held to be a widow of the late Gabigogo is entitled to occupy the suit land. I also note that the 2nd Plaintiff in HCCS. NO. 059 of 2010 is the 1 st Defendant in this suit while the other Plaintiffs in the HCCS. No.59 of 2010 were her children. It was also held by the Learned Judge on Page 19 Paragraph 1 and 2 of the Judgement that the 2nd Plaintiff's children have a moral duty to visit her now in her old age and therefore their acts cannot constitute trespass. On Page 23, the Court also made a finding that the Defendants being beneficiaries of the estate of the late Prince Enock Gabigogo, could not be trespassers on the suit.

In my opinion, the Court found that the actions of the Plaintiffs in Civil Suit No.059 of 2010 on the suit land were declared to be lawful and that the issues raised by the Defendant were found to be devoid of merit.

In comparison with the current suit before this Court, it is my observation that the Plaintiff who was the Defendant and counter claimant in HCCS. No.59 of 2010, raises the same issues for determination that he raised in his counter claim that is; illegal acts on the suit land by the Defendants which in my view amount to trespass. I would also like to point out that the prayers he sought in the counter claim are largely similar to those he seeks in the current suit before the same Court and yet the Court already made a determination on the issues.

I already observed that in the first suit, the 2nd Plaintiff there in who is the 1st Defendant in this suit brought the suit jointly with other plaintiffs who were her children, of which two of the plaintiffs are also defendants in the current suit. The suit was brought against the Defendant who happens to be the Plaintiff in this suit.


It could be argued that the list of parties, specifically the beneficiaries in HCCS. No. 59 of 2010 is not entirely identical to the list of beneficiaries in current suit. However, if this Court is to apply the strict requirement for the parties to fully be the same under Section 7 of the Civil Procedure Act, in such cases, it would defeat the purpose of the provision. It is not in dispute that in this suit, the suit is brought against the 1st Defendant and her children jointly. I observe that Civil Suit No.59 of 2010 was brought by the 1st Defendant as 2nd Plaintiff together with other plaintiffs who were also her children. The effect of the preceding observation is that in both cases involving Moses Rukidi, the parties on the other side were collectively beneficiaries to the estate of the late Prince Enock Gabigogo. To simply put it, the complaints by or against Mosese Rukidi concerned the principal residential holding of the late Enock Gabigogo in relation to the actions of the deceased's widow and her children which in my view is a matter that was already resolved by this Court in HCCS. No.59 0f 2010.

In conclusion, it is my finding that issues as raised in the suit were substantially in issue in HCCS. No. 59 0f 2010. This Court duly considered the issues and resolved them on their merits in the previous suit and as such, this Court cannot reconsider the issues.

It is therefore this Court's finding that this suit is barred by law for being res judicata under Section 7 of the Civil Procedure Act and is therefore dismissed with costs to the Defendants.

I so order.

Dated at Masaka this 05th day of May 2023 and delivered electronically.

# **Victoria Nakintu Nkwanga Katamba.**

# **Judge.**