Kafeero & 2 Others v Uganda (Criminal Revision 3 of 2022) [2023] UGHC 423 (7 September 2023)

## **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT MASAKA**

## **CRIMINAL REVISION CAUSE NO.003 OF 2022**

# **(ARISING OUT OF MASAKA CHIEF MAGISTRATES COURT CRIMINAL CASE NO.138 OF 2022: MASAKA CRB 801/2022)**

## **1. KAFEERO PAUL**

### **2. BIRAKWATE FELIX**

**3. NVUMBA JOYCE:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANTS**

#### **VERSUS**

### **UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT.**

#### *Before; Hon Justice Victoria Nakintu Nwanga Katamba*

## **RULING.**

This Application was brought under Article 139(1) of the 1995 Constitution of the Republic of Uganda, Sections 14(2), 17(1) and 33 of the Judicature Act Cap 13, Sections 48 and 50 of the Criminal Procedure Code Act Cap 116 and Rules 2 and 3 of the Judicature Criminal Procedure Application Rules SI 13-8 seeking the following orders that;

- 1. Criminal proceedings pertaining to Masaka Criminal Case No.138 of 2022: Masaka CRb 801/2022 be stayed pending the disposal of High Court Masaka Civil Suit No.25 of 2022: Namugwanya Jamidah versus Joice Nvumba, Paul Kafeero, Eriabu Ruhonda and Flex Birwakwate or that the same be terminated as against the Applicants (Accused persons). - 2. In the alternative, Criminal case No.138 of 2022 be terminated for lack of geographical jurisdiction by the Chief Magistrates Court of Masaka at Masaka. - 3. Consequential orders be issued.

The Application was supported by an affidavit deponed by the 1st Applicant, Kafeero Paul who deponed the affidavit on his behalf and on behalf of the 2nd and 3rd Applicants. In the affidavit, he states as follows that;


- 1. The Applicants were jointly charged in Masaka with the offences of Theft C/S 254(2) and 261, Forgery C/S 348(1) and 347 and uttering a false document C/S 351 of the Penal Code Act Cap 120 and that the case is pending. - 2. The Complainant is Lujumba Jimmy, biological son of the late Uziya Ddungu. - 3. According to the prosecution, the offences arose in respect to certificate of title to land comprised in LRV 1829 Folio 7 described as Kooki Block 40 Plot 10 land situate at Ntalama in Rakai District. - 4. The Applicants do claim an interest in the suit land having properly got the duplicate leasehold certificate of title. - 5. The late Uziya Ddungu is registered as the proprietor but he was supposed to add the Applicants names as co-owners. - 6. After the Applicants had been charged, one Namugwanya Jamidah, daughter to late Uziya Ddungu filed High Court Civil Suit No.25 of 2022 against the Applicants and a one, Eriabu Ruhonda. - 7. The issues for determination in the civil suit, are the same issues under consideration in the Criminal case. - 8. The charges against the Applicants are a criminalized land dispute. - 9. The Criminal case and the Civil Suit are both subsisting however, the High Court is vested with jurisdiction to stay proceedings in the Magistrates Court. - 10. Concurrent proceedings are barred under the law and are an abuse of Court process. - 11. Allowing the cases to run concurrently may result in conflicting judgements. - 12. The issue of ownership can best be resolved by the Civil Suit and this shall have a direct bearing on the Criminal case. - 13. The Chief Magistrates Court of Masaka at Masaka lacks the geographical jurisdiction because the subject matter is situate in Rakai and proceedings ought to be before the Chief Magistrates of Rakai at Rakai where the subject matter is located.

There was never an affidavit in reply despite the fact that the state was served.

The Parties were instructed to file written submissions however, at the point of determination of this Application, only the Applicants had filed written submissions. I shall therefore dispense with the Respondent's submissions.


The Applicants raised three issues for determination;

- 1. Whether the Applicants have proved grounds to warrant a stay of the criminal proceedings in the Magistrates Court pending the determination of the Civil Suit in the High Court? - 2. Whether the Chief Magistrates Court of Masaka at Masaka lacks geographical jurisdiction? - 3. What remedies are available to the Applicants.

#### **Submissions for the Applicants.**

# **1. Whether the Applicants have proved grounds to warrant a stay of the criminal proceedings in the Magistrates Court pending the determination of the Civil Suit in the High Court?**

The gist of Counsel's submission is that the issues for determination in the Civil Suit, are the same issues up for determination in the Criminal case and the fact that both suits are proceeding is something barred by law. It was submitted that if the proceedings are allowed to run concurrently, it may result in conflicting decisions. While referring to the case of Sebulime Baker v Uganda, Criminal Appeal No.21 of 2018, Counsel submitted that issues of ownership can best be resolved through a Civil Suit and this shall also have a bearing on the Criminal Case.

While also relying on Section 48 of the Criminal Procedure Code Act Cap 116 and Section 17 of the Judicature Act Cap 13, Counsel submitted that this Court has supervisory powers over the Magistrates Court and this Court can call any record from the Magistrates to satisfy itself as to correctness, legality or propriety of any finding, sentence or order recorded or passed and it can therefore stay proceedings in the Magistrates Court, pending determination of the Civil Suit.

I note that Counsel relied on multiple authorities to support his submissions; Prosecutor versus Stephen Lesinko High Court of Kenya Criminal Revision No.9 of 2018, Hajjati Safina versus Uganda, HCT-00-CR-CV-01 of 2022, Uganda Versus Ssonko Edward HCRA, No.12 of 2019, Musumba Yahaya and another


versus Uganda, HCRC. No.04 of 2019 and Okello Chris and Another versus Uganda, Criminal Session No.639 of 2013, which have given due consideration.

# 2. **Whether the Chief Magistrates Court of Masaka at Masaka lacks geographical jurisdiction?**

Counsel relied on the Magistrates Court (Magisterial Areas) Instrument, 2017 to support his submission that the instrument establishes a Chief Magistrate Court of Rakai which is vested with the geographical jurisdiction to hear the criminal case and not the Chief Magistrates Court of Masaka at Masaka. Counsel submitted that the right trial Court ought to be the Chief Magistrates Court of Rakai at Rakai where the subject matter is located. Counsel also relied on the case of Uganda v Kassiano Wadri and 31 others, High Court Criminal Revision No.02 of 2018 (Arua) to support his submissions.

On remedies, it was submitted that criminalizing land disputes is an abuse of Court process and perverts the course of justice which renders the criminal proceedings in the lower court irregular. Counsel submitted that the criminal proceedings ought to be terminated. Counsel relied on the case of Hajjati Safina Mugale versus Uganda HCT CR-CV-01 of 2022.

Having carefully considered the Affidavit in support and all the annexures thereon and the submissions in support, I now proceed to determine the Application.

## **Determination of Application.**

# **1. Whether the Criminal proceedings before the Magistrates Court should be staying pending the determination of the Civil Suit in this Court.**

The gist of this Application is that this Court should stay the Criminal proceedings in the Chief Magistrates Court pending the determination of the Civil Suit that was filed in this Court because the issues for determination in both cases are identical. In the alternative, counsel sought termination of the criminal proceedings.

It is my observation that in bringing this Application, the Applicant's rely on *Sections 48* and *50* of the *Criminal Procedure Code Act* invoking this Court's powers to exercise its revisionary powers.


For purposes of clarity, I shall reproduce the provisions; *Section 48* provides that; *The High Court may call for and examine the record of any criminal proceedings before any magistrate's court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of the magistrate's court.*

For *Section 50,* I shall only reproduce *Section 50(1)* which is the relevant section that sets a foundation for all the other subsections under *Section 50*.

*Section 50(1)* provides as follows that; *In the case of any proceedings in a magistrate's court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, when it appears that in those proceedings an error material to the merits of any case or involving a miscarriage of justice has occurred, the High Court may-*

*(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 34 and 41 and may enhance the sentence;*

# *(b)in the case of any other order, other than an order of acquittal, alter or reverse the order.*

From a reading of both provisions, it is my opinion that for this Court to exercise its revisionary powers under *Section 48*, there must have been a finding, sentence or order recorded or passed while under *Section 50*, there must have an order. In both cases, there must be some sought of decision on the merits of the case.

*Section 48* partly reads, "…...*or passed, and as to the regularity of any proceedings of the magistrates Court*."(emphasis mine). This does not mean that where there is no order, finding or sentence, an applicant can still proceed to apply for revision. The use of "and" means while dealing with the order, finding or sentence, Court will go ahead to inquire into the proceedings. To put it simply, the finding, sentence and orders go together with the inquiries as to the legality of the proceedings and not in isolation of one another. (See; *Uganda versus Nkalubo, Court of Appeal Criminal Appeal No.130 of 2021*).


I have perused the file at the Chief Magistrates Court pertaining to the criminal case against the Applicants and it is my observation that besides bail applications that were granted and properly considered by the Learned Trial Magistrate, there was no other finding, sentence or order on stay of the proceedings. In fact, Court was not even aware or made aware of the Civil Suit.

Counsel cited multiple authorities and I have had an opportunity consider all the authorities however, I shall refer to those that bear almost similar facts to the case before me, that is; *Hajjati Safina Mugale versus Uganda HCCR. Application No.01 of 2022*, *Uganda versus Ssonko Edward. HCCR Application No.12of 2019*, *Musumba Yahaya and Another versus Uganda, HCCR. Application No.04 of 2019* and *Sebulime Baker versus Uganda, High Court Criminal Appeal No.21 of 2018.*

What is central to all the decisions above is that all the cases concerned existence of both criminal and civil cases arising from similar facts however, prior to bringing the proceedings for revision or appeal, the Applicants first applied to the Magistrates Court for stay of the criminal proceedings pending determination of the Civil Suits. The Applications for stay were rejected prompting the Applicants to apply to the High Court to exercise its revisionary powers to set aside the order rejecting the stay of criminal proceedings. In essence, there was an order from the Magistrates Court being challenged and therefore Court was invoking its jurisdiction under Section 48 or 50 to revise a decision of the Magistrates Court.

This case is distinguishable, there was never an application to stay the criminal proceedings pending determination of the civil Suit and neither was there an order, finding or sentence with regards to the same which would warrant Court to exercise its revisionary powers. If this Application was strictly brought under Section 48 and 50, it would fail.

Be that as it may, reliance was placed on Section 17 of the Judicature Act. *Section 17* of the *Judicature Act*, provides that;

- (1) *The High Court shall exercise general powers of supervision over magistrates courts*. - (2) With regard to its own procedures and those of the Magistrates' Courts, the High Court shall exercise its inherent powers—


- *(a) to prevent abuse of process of the court by curtailing delays, in trials and delivery of judgement including the power to limit and discontinue delayed prosecutions;* - *(b) to make orders for expeditious trials;* - *(c) to ensure that substantive justice shall be administered without undue regard to technicalities.*

In *Uganda versus Ssonko HCCR. Application No.12 of 2019* as cited by Counsel, it was held that the Section 17 illustrates that the inherent power of the High Court may be invoked to curtail delays, to ensure expeditious trials and to ensure technicalities are not used to defeat substantial justice. This holding should however be read in the context of abuse of Court process.

In *Kiwanuka versus Attorney General, HCMA. No.89 of 2022*, it was held that abuse of court process is using Court process for an improper purpose.

It is my opinion that neither of the proceedings amount to an abuse of Court process to warrant Court to exercise its inherent powers because facts may give rise to both criminal proceedings and civil proceedings. Both proceedings would be valid and the proceedings cannot be said to be mutually exclusive. (See; *Sarah Basangwa versus Uganda, SCCA. No.03 of 2018*)

In Counsel's submissions, he makes mention of "criminalizing land disputes" and cites the case of Hajjati Safina versus Uganda. In *Hajjati Safina versus Uganda (supra)*, it was held that criminalizing purely land disputes is an abuse of Court process and it occurs when an individual uses trumped up charges against a party to a civil suit.

In the above case, there was already a subsisting civil suit determining an issue of ownership however, criminal proceedings were later brought albeit based on the same facts. While observing that the above was an abuse of Court process, Court also observed that under Section 209 of Magistrates Court Act, the Magistrates Court is precluded from proceeding with a suit where the issue for determination is substantially in issue in a *previously* instituted suit whether in the same Court or any other.


The above case is clearly distinguishable from this one. In this case, the criminal proceedings were instituted before the Civil Suit. I also observe that according to the record, the Magistrates Court was not made aware of the Civil proceedings and neither was he obligated to stay proceedings considering the criminal case was first in line in light of Section 209 of the MCA.

It also my observation that though both the Plaint and charge contain an issue of forgery with respect to the same land, the charge sheet further contains issues of theft and uttering false documents. It cannot therefore be said that both cases fall squarely on an issue of ownership. The circumstances would be different if in light of the civil suit, a criminal case was instituted in respect to trespass.

I therefore do not agree with Counsel's submission that a land dispute has been criminalized. However, I am alive to the fact that if the proceedings run concurrently, it may result in conflicting decisions. This would also have a negative bearing on costs and time, yet Court is duty bound to administer justice in the shortest time possible and at the least cost.

In *Musumbya Yahaya and another versus Uganda (supra)*, it was held that there is no statutory provision that provides for criminal cases taking precedence over civil cases and vice versa however criminal cases should take precedence over civil cases. (Also see; *Joseph Agenda versus Uganda, HCCR. No.003 of 2011*).

In *Uganda versus Ssonko Edward (supra)*, the criminal case was filed before the civil case and the criminal case had already commenced. The Court opted to expedite the criminal proceedings rather than stay the same.

In the premise, considering;

- (a) the fact that the criminal case was filed first; - (b) the issues for determination are not entirely similar to those in the Civil Suit; - (c) The criminal case has already commenced; - (d) Civil proceedings and criminal proceedings can co-exist; - (e) Criminal cases should generally take precedence over civil cases,


It is my finding that the circumstances do not warrant a stay or termination of the criminal proceedings pending determination of the civil suit. Since the Civil Suit is in this Court, it is my opinion that the same ought to be stayed pending the determination of the criminal case and that the criminal proceedings ought to be expedited.

# 2. **Whether the Chief Magistrates Court of Masaka at Masaka lacks jurisdiction to trial the case?**

I agree with Counsel's submission that proceedings before a Court without jurisdiction are a nullity however, I do not agree with Counsel's submissions that the Chief Magistrates Court of Masaka at Masaka lacks jurisdiction and that the correct trial Court is the Chief Magistrates Court of Rakai at Rakai where the subject matter is.

*Part IV* of the Magistrates Courts Act provides for where criminal trials are to be held. I shall consider *Sections 34 and 35* of the *Magistrates Court Act* as the applicable sections*.*

*Section 34 provides that; every offence shall ordinarily be inquired into or tried by a court within the local limits of whose jurisdiction it was committed.*

*Section 35* provides that; *When a person is accused of the commission of any offence by reason of anything which has been done or of any consequence which has ensued, the offence may be inquired into or tried by a court within the local limits of whose jurisdiction any such thing has been done or any such consequence has ensued*.

On perusal of the charge sheet, it is my observation that the prosecution alleges that the offences of theft, forgery and uttering false documents were committed in Masaka City in Masaka District and not Rakai. It is therefore my finding that the proceedings are properly before the Chief Magistrates Court of Masaka at Masaka.

Having observed that the circumstances do not warrant a stay of the criminal case and that the criminal case is before a court vested with jurisdiction. This Application is without merit and is hereby dismissed.

I so order.

Dated and delivered at Masaka this 7th day of September 2023.



### **Victoria Nakintu Nkwanga Katamba.**

**Judge.**