G.W Sembatya v Nandaula & 2 Others (Civil Suit 918 of 2000) [2002] UGHCLD 2 (13 March 2002)

Full Case Text

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

### CIVIL SUIT NO. 918/2000

G. W. SEMBATYA PLAINTIFF

### VERSUS

NANDAULA HARRIET AND TWO OTHERS DEFENDANTS

## BEFORE; THE HON. MR. JUSTICE E. S. LUGAYIZI

#### RULING

This ruling is in respect of a preliminary objection that was raised by Mr. Lutakomc (counsel defendants) in respect of the head suit just before a Scheduling Conference was held. In that objection Mr. Lutakome contended that the head suit was barred by resjudicata. He therefore prayed for Court's orders to dismiss it. for the ls\ 2nd and 3 rd

However, before Court goes into the merits of the said objection it is appropriate to understand its background which is as follows. The plaintiff sued the defendants for trespass under the head suit. He alleged that he bought the kibanja on Block 115 Plot 275 first and later the whole Mailo interest from one Nassali Erinayida. Nassali is the administrator of the estate of the late Erenest Mukasa who was the owner of the kibanja in question and Mailo the plaintiff who had no choice but to sue them. interest. After the said sale the defendants refused to give vacant possession of the kibanja to

In their Amended WSD the defendants denied the plaintiffs claim. They averred that the kibanja in question belonged to them as representatives of the late Allen Namircmbc. Allen Namirembe was the owner of that kibanja; and before her death the plaintiff lost an LC case

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against her in respect of the kibanja in question. Nandaula Harriet (the 1st defendant) is the The defendants lawfully lived on the said kibanja before Namirembe's death; and on her defendant obtained Letters of Administration in respect of Namirembe's estate. The defendants continue to live on the kibanja in question and are surprised that the plaintiffsued them. That is the background to the objection. demise, the 1st late Namirembe's daughter; and the 2nd and 3rd defendants are Namirembe's grandchildren.

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At the time of hearing the objection, Mr. Lutakome submitted that the head suit was barred by res judicata under section 7 of the CPA in that the same dispute was decided by the LC court in 1998 when the plaintiff sued the late Namirembe. He further pointed out that the plaintiff lost that case and did not appeal. Mr. Lutakome therefore concluded that the plaintiff cannot be seen to resurrect the said matter by suing the defendants who are Namirembe's representatives. Mr. Lutakome urged Court to dismiss the head suit.

On the other hand, Mr. Kugumikiriza who represented the plaintiff submitted that since the plaintiff was both the Mailo owner and the kibanja holder, the LC court that decided the matter between the plaintiff and the late Namirembe had no jurisdiction under the Resistance Council Statute to determine that case. Secondly, Mr. Kugumikiriza pointed out that the defendants cannot use the LC court's decision which was between the plaintiff and Namirembe to fault the head suit under the doctrine of res judicata because that decision was not a judgment in "rem". It was a decision that affected the plaintiff and Namirembe only and does not stop the plaintifffrom suing other people in respect ofthe kibanja in question.

In Court's opinion the preliminary objection which is the subject of this ruling raises three main questions namely,

1. Whether the LC court that decided the case which involved the plaintiff and Namirembe in 1998 had jurisdiction to do so?

2. Whether the head suit is barred by resjudicata?

3. The available remedies?

Court will answer the above questions in the order in which they occur.

March 1998 when the provisions of the Resistance Committees (Judicial Powers) Statute were still good law. Linder section 4 and item 1 of the Schedule to that Statute LC courts had jurisdiction to try land disputes of a customary nature. Namirembe's case against the plaintiff was. in respect of the kibanja in question and not the plaintifs Mailo interest. There is no doubt, therefore, that the said dispute was one of a customary nature which the LC court had jurisdiction to determine. The first question has been answered in the affirmative. With regard to the first question, the LC court that decided the case against the plaintiff did so on 14"'

With regard to the second question, section 7 ofthe Civil Procedure Act has this to say about the doctrine ofresjudicata,

> "7. *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 aformer 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 such subsequentsuit or the suit in which such issue has been subsequently raised and has been heard andfinally decided by such court".*

In the case of Kamunye v Pioneer Assurance Ltd (1971) E. A. 263 Sheridan (J) (as he then was) put the test whether or not a suit is barred by res judicata in the following words at page 265 of hisjudgment,

> *"The test*... *seems to me* ... *is the plaintiffin the second suit trying to* . *bring to court in another way and in the form of a new cause of action, 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 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 broughtforward at the time* ..." *transaction which he has already put before a*

Applying Sheridan (J's) test in the instant case, it is very clear that the substance of the head suit (ie. the ownership of the kibanja in question) was exactly what was in dispute in the LC court between the late Namirembe and the plaintiff in 1998. The only difference between that dispute and the one at hand is that the latter is between the plaintiff and the defendants. However, the 1st defendant is Namirembe's daughter and her representative in that she holds defendants are Namirembe's grandchildren. Therefore, for all practical purposes Court can say that the plaintiff is, under the head suit, suing the late Namirembe again. It seems that when the plaintiff lost the LC case during Namirembe's life, he did not think that it was the end of the matter. Although he did not appeal against that decision, he quietly waited for Namirembe's demise with the hope that he would have another round in court with Namirembe's representatives over the same matter. It is quite likely the plaintiff wished that no one would letters of administration in respect of Namirembe's estate. The 2nd and 3 rd

notice the irregularity. He was not quite fortunate. The defendants were not asleep. They remembered what had earlier on transpired between the plaintiff and **Namirembe** in respect of that kibanja and they also knew the law. All in all, Court has no choice but to find that the head suit is barred by res judicata. The second question has also been answered in the affirmative.

With regard to the third question, since Court has answered the first two questions in favour of the defendants it means that the preliminary objection which their counsel raised has succeeded. For that reason, the head suit cannot stand. It is accordingly hereby rejected and struck out with costs under Order 7 rule 11 (d) of the CPR.

JUDGE •ugayjfci

13/3/2002

Read before: At 9.21a.m.

Plaintiffin Court

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Mr. Senabulya Court Clerk

ugay JUDGE

13/3/2002