Katungulu and 2 Others v Rwabuganda (Civil Application 9 of 2021) [2021] UGSC 46 (27 April 2021)

### THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

#### [CORAM: MUGAMBA, JSC]

#### CIVIL APPLICATION NO. 09 OF 2021

(Arising from Supreme Court Civil Appeal No. 16 of 2014)

#### **BETWEEN**

- 1. KATUNGULU JOHN MATOVU - 2. NSENGA PADDY ROBERT - 3. MUTANSAVA JOSEPH::::::::::::::::::::::::::::::::::::

#### AND

GODFREY RWABUGANDA :::::::::::::::::::::::::::::::::::

# RULING OF MUGAMBA, JSC.

The applicants filed this application by Notice of Motion under Rule 6 of the Supreme Court Rules seeking:

- a) An interim order of stay of execution in Supreme Court Civil Appeal No.16 of 2014 be granted. - b) Costs for this application be provided for.

The application was based on grounds that were stated as follows:

1. The respondent obtained judgment in their favor vide Court of Appeal Civil Appeal No. 87 of 2010 which judgment and orders where confirmed by this honourable court in Supreme Court Civil Application No. 16 of 2018.

- 2. The respondent is in the process of executing the said decree and orders made therein. - 3. The applicants herein have filed an application for objector claiming to be the lawful owners of the suit land which is the subject of execution. - 4. Once execution of the decree is allowed to continue then the application for objector shall be rendered nugatory and the objectors will be condemned without being heard. - 5. The applicants have filed Supreme Court Civil Application No............. of 2021 for stay of execution which is pending hearing. - 6. The execution of the said decree if not restrained shall cause substantial loss and irreparable damages to the applicants. - 7. It is in the interest of justice that this application be allowed.

The said application is supported by an affidavit dated 9<sup>th</sup> March 2021 sworn by Mr. **Katungulu John Matovu**, the first applicant.

Mr. Rwabuganda Godfrey, the respondent, filed an affidavit in reply dated 16<sup>th</sup> April, 2021 opposing the application.

#### **Background**

The background to this application according to Supreme Court Civil Appeal No. 16 of 2014 is that, one **Bitamisi Namuddu**, the therein, instituted legal proceedings appellant against Rwabuganda Godfrey, herein the respondent, and the Registrar of Titles in the Kiboga District Land Tribunal (hereinafter referred to as "the Land Tribunal") in respect of land comprised in

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Leasehold Register 645 Folio Singo Block 783 Plot 3 at Nakatakuli (the suit land) for conversion and trespass. Bitamisi Namuddu was the holder of letters of administration for the estate of her deceased father. Her claim was that the suit land which at the time of her filing the suit was registered in the name of the respondent, belonged to her deceased father. She sought from the Land Tribunal, among other things, a declaration that she was the rightful owner of the suit land and an order of eviction of the respondent from the suit land.

On 12<sup>th</sup> November, 2004, the Land Tribunal issued Bitamisi Namuddu with summons to serve on the defendants ordering them to file their defence. Bitamisi Namuddu gave the summons to a process server to effect service. However, the process server was unable to effect service because, according to the process server, the LC 1 Chairman of the area informed him that the respondent was not known in the area. The return of service was made on 27<sup>th</sup> December, 2004.

On 21<sup>st</sup> June, 2005, Bitamisi Namuddu filed a formal application by Chamber summons for substituted service. The Land Tribunal granted her leave to effect summons by substituted service, and on 24th August 2005 a notice appeared in the New Vision newspaper headed "Summons/Hearing Notice" requiring the respondent to attend the hearing of the matter at the Land Tribunal at 9:00 O'clock in the forenoon.

The Tribunal being satisfied that the summons/hearing notice had been served against the respondent allowed Bitamisi Namuddu to

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formally prove her case ex parte. In its judgment, the tribunal found that Bitamisi Namuddu was the rightful owner of the suit land. It referred the matter to the High Court which made the necessary consequential orders of cancelling the title of the respondent under S.30 (d) of the Land (Amendment) Act, 2004 and entering the name of Bitamisi Namuddu on the register. The respondent was evicted from the suit land and Bitamisi Namuddu took possession of it.

The respondent then filed Miscellaneous Application No. 44 of 2007 in the Chief Magistrates Court at Kiboga (Land Tribunals had ceased to operate) for orders that the ex parte judgment, orders and decree passed by the Land Tribunal in November 2004 be set aside on the ground that the service of summons was neither effective nor proper. It was argued that service was not in accordance with the Land Tribunal (Procedure) Rules S.1.33 of 2002 or Civil Procedure Rules 8.1.71-1. A grade one Magistrate who heard the application dismissed it.

The respondent then appealed to the High Court at Nakawa (Mwondha, J,) (as she then was) and the High Court dismissed the appeal. The respondent then appealed to the Court of Appeal. The grounds read as follows:

- 1. The trial magistrate erred in law when she refused to set aside the ex parte judgment against the respondent. - 2. The trial judge erred in law when she failed to rule that the respondent was never served with court process

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- 3. The trial judge erred in law when she held that service of court summons in the New Vision newspaper was effective service on the appellant who resided in Kiboga - 4. The trial judge erred in law when she held that the appellant had failed to disclose triable issues and to establish a prima facie case.

The Court of Appeal allowed the appeal and found that the order for substituted service was a nullity ab initio having been made by a court which had no jurisdiction, and made orders as follows:

- 1. The judgment of the High Court is hereby set aide and substituted with this judgment dismissing the suit for noncompliance with Order 5 Rule (2) of the Civil **Procedure Rules.** - 2. The consequential orders made by the High Court on 20<sup>th</sup> September 2007 are hereby set aside - 3. The Commissioner of Land Registration is hereby ordered to cancel the respondent's name on L. H. R Volume 645 Folio 9 Singo Block 783 Plot 3 and reinstate thereon the name of the appellant. - 4. The respondent is hereby ordered to vacate the suit land described in paragraph 3 above immediately, and to handover vacant possession to the appellant. - 5. The respondent is hereby ordered to pay costs in this $\frac{1}{2}$ appeal, the High Court and in the Land Tribunal.

Being dissatisfied with the decision of the Court of Appeal, Bitamisi Namuddu applied in that same Court of Appeal for leave to appeal to this court given that the appeal would be a third appeal. The

application was declined by the Court of Appeal. The appellant then applied to this court in Civil Application No.04 of 2015 for leave to appeal. The application was granted. This court heard the third appeal in Civil Appeal No.16 of 2014, which it dismissed and confirmed the decision of the Court of Appeal. It ordered Bitamisi Namuddu to pay costs to the respondent in this court and courts below.

### Representation

At the hearing of this application, Mr. Oscar Boban represented the applicants while Mr. Fred Mutumba holding brief for Mr. Yese Mugenyi appeared for the respondent. The applicant was present in court. The respondent was absent. Parties relied on their written submissions.

# Submissions by the Applicant

Counsel submitted that under Rule 2 (2) of Rules of this court this court has inherent power to make such orders as may be necessary for achieving the ends of justice or to prevent abuse of the process of Court. Counsel cited Hwang Sung Industries Limited vs Tajdin Hussein & Others, Supreme Court Civil Application No. 19 of 2008 and Patrick Kaumba Wiltshire Vs Ismail Dabule, SCCA No. 03/2018.

Counsel contended that the application arose out of SCCA No,16/2014 Bitamisi Namuddu vs Rwabuganda Godfrey in which this court upheld the decision of the Court of Appeal to cancel the name of Bitamisi Namuddu on the certificate of title for

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Singo Block 783 Plot 3 and to replace it with that of the respondent (Rwabuganda Godfrey).

Counsel averred that in the above judgment this court acknowledged that there were third parties who had rights and interest in the suit land and that it was referring to the applicants herein. He further contended that the same third parties and their rights to the suit land had previously been brought to the attention of this court in three previous applications, namely John Katungulu Matovu Vs Rwabuganda Godfrey & Bitamisi Namuddu, SCCA No. 174/2014, Bitamisi Namuddu Vs Rwabuganda Godfrey, SCCA No. 16/2014 (on page 22 of the lead judgment) and in Bitamisi Namuddu Vs Rwabuganda Godfrey, SCCA No. 04/2015.

Counsel submitted that although this court had suggested that third parties are entitled to be heard in a court with proper jurisdiction, the respondent has proceeded to execute the Court of Appeal decree against the third parties without them being given a chance to be heard. According to counsel those third parties should not be condemned as the respondent wishes to do without them ever being heard.

Counsel submitted that in addition the respondent has since served the applicants with a Notice of Eviction dated 18<sup>th</sup> February 2021 giving them only 90 days to vacate the suit land. He contended that it was therefore paramount this court grants an interim injunction to prevent any further injustice being suffered by the applicants. He added that the respondent has partially

$\overline{7}$ carried out the execution and that all that remained was obtaining vacant possession of the suit land.

## Submissions by the respondent

Counsel for the respondent opposed the application and submitted that the application was an abuse of court process as the applicants had earlier lodged a similar application in this court. He cited the application as Miscellaneous Application No.04 of 2019. He added that the application was heard and dismissed.

Counsel further averred that the applicants' main application for stay of execution was also dismissed on 24<sup>th</sup> July 2020 by a full bench of this court. He said the reason was want of prosecution.

Counsel submitted that this application is incompetent as there is no Notice of Appeal filed by the applicants. He contended that provisions of Rule 72 of this court are clear and unambiguous and that they make a Notice of Appeal a prerequisite for grant of stay of execution. He further argued that objector proceedings of the applicants filed in lieu of a Notice of Appeal do not entitle the applicant to an interim order.

Counsel submitted that the respondent was dispossessed by a warrant of vacant possession dated 24<sup>th</sup> October, 2008 arising from a decree in Civil Suit No.23 of 2006 issued by Kiboga Chief Magistrate's Court. He stated that the decree was confirmed by the High court but was later reversed by the Court of Appeal and this Court. He contended that in effect the respondent was restored to the original position before the impugned decree. He added that

the respondent is now the registered proprietor of the suit land after the order cancelling the registration of Bitamisi Namuddu.

## Consideration of the application.

This Court in numerous cases has set criteria to be met before an interim order can be granted. It is trite law that the applicant must satisfy the Court by evidence that there is:

- 1. A competent Notice of Appeal - $2.$ A substantive application; and - $3.$ A serious threat of execution.

See Hwang Sung Industries Limited vs Tajdin Hussein & Others, Supreme Court Civil Application No. 19 of 2008, Zubeda Mohamed & Anor v Wallia & Anor, Supreme Court Civil Reference No.07 of 2016, Patrick Kaumba Wiltshire Vs Ismail Dabule, Supreme Court Civil Application No. 03 of 2018, E. B. Nyakaana & Sons Ltd Vs Beatrice Kobusinge & 16 Others, Supreme Court Miscellaneous Application No. 13 of 2017.

The main purpose of granting of interim orders/injunctions is to prevail on parties to preserve the status quo until the substantive stay of execution is heard and determined by the full court pursuant to the Rules of this court. The decision whether to grant or not is discretional, depending on the circumstances of the case. Needless to say, that power is exercised judiciously.

I have perused the application and affidavits thereto attached. There is no Notice of Appeal attached or pleaded by the applicants. There is also no evidence of a pending substantive application of stay of execution availed to court. Although the applicants hint in ground 5 of the application and paragraph 8 of the affidavit in support of the application that they filed the same in this court, they don't indicate the application number and they have not furnished a copy of it to Court. What's more, though the applicants claim that they have filed an application for objector, there is no evidence of the same being filed in the Court.

In E. B. Nyakaana & Sons Ltd Vs Beatrice Kobusinge & 16 Others, Supreme Court Miscellaneous Application No. 13 of **2017**, this court observed

"A perusal of these authorities shows that before Court exercises its discretion, it must be satisfied that:(a) a Notice of Appeal has been lodged in accordance with Rule 72 of the Rules of this Court; (b) a substantive application for stay of execution is pending before Court; (c) there is a serious threat of execution before the hearing of the substantive application; and (d) the application has been filed without undue delay.

Turning to the first factor, the applicant submits that it filed a Notice of Appeal. This contention is also repeated in paragraph 6 of the applicant's affidavit in support of the application. However, the applicant neither attached a copy of the Notice of Appeal nor the Judgment of the Court of Appeal from which the intended appeal emanated attached. Attaching these two crucial documents could have gone a long way in helping Court to determine whether the applicant had filed a Notice of Appeal, and if so, whether it was filed in accordance with Rule 72 (2) of the Rules of this Court.

I note that copies of both the Court of Appeal Judgment and the Notice of Appeal were attached on the Affidavit in Reply to the application deponed by the 1st respondent, Beatrice Notwithstanding this attachment by the $1^{st}$ Kobusinge. respondent, I still find that it was the duty of the applicant and not the respondent to prove that it had lodged a Notice of Appeal in accordance with Rule $72(2)$ of the Rules of this Court. It would, in my view, be bad practice for the applicant or this Court for that matter to solely rely on the documents filed by the respondent(s) to prove the applicant's case. In the circumstances, I find that the applicant did not prove to this Court that it had lodged a Notice of Appeal in accordance with Rule 72 (2) of the Rules of this Court.

I now turn to the next ground which is the existence of a pending substantive application. Counsel for the applicant submits that he has filed a substantive application (Civil Application No. 12 of 2017) for stay of execution in this Court. This contention is also averred in paragraph 14 of the affidavit in support of the application. I however note that just like in the two preceding instances, counsel for the applicant did not adduce any evidence to support his contention. It could have been proper to attach this pending substantive application (if any) on the affidavit in support of the application. In the circumstances, the Court is not able to ascertain whether there is a pending substantive application for stay of **execution or not.**" (Underlining for emphasis)

I find that this application is incompetent. The applicants have failed to show by evidence that they filed in this Court a Notice of Appeal and a substantive application of stay of execution. That on its own would dispose of this application.

Even if the application had been found competent, it offends against the doctrine of res judicata. Counsel for the respondent raised concern that this application was an abuse of court process as it was heard and determined by this court. Upon checking with the Registry, I find that indeed the first and third applicant filed in this court Miscellaneous Application No.04 of 2019. The applicants were seeking an interim order for stay of execution. The said application was evidently dismissed by this court. Noteworthy is the fact that both Miscellaneous Application for an interim order for stay of execution and Miscellaneous Application No.3 of 2019 for stay of execution, substantively, arose from Civil Appeal No.16 of 2016. The instant application also arises from the same Civil Appeal No. 16 of 2016. I note also that the parties, the background of the cause of action and remedies are the same.

## **Section 7 of the Civil Procedure Act reads:**

"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 had been heard and finally decided by that Court"

In Kamunye & Others Vs the Pioneer General Assurance Society Ltd (1971) E. A 263, it was held inter alia:

"The test whether or not a suit is barred by *res judicata* seems to me to be is the plaintiff in the second suit trying to bring before the court in another way and in the form of a new cause of action, a transaction which he has already put before 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 actually required to adjudicate but to every point which properly belonged to the subject of litigation and which parties, exercising reasonable diligence, might have brought forward at the time.... The subject matter in the subsequent suit must be covered by the previous suit, for res judicata to apply...".

Similarly, in **Karia and another v. Attorney General and others** [2005] 1 EA 83, this court addressed res judicata stating as follows:

"I will first discuss the meaning, operation and effect of the plea of *res judicata*. The respondents pleaded this defence on the basis of the decision of the Court of Appeal in civil appeal number 36 of 1996 (supra).

The doctrine of *res judicata* is set out in section 7 of the Civil Procedure Act...

The provision indicates that the following broad minimum conditions have to be satisfied:

- 1. There have to be a former suit or issue decided by a competent Court. - 2. The matter in dispute in the former suit between parties must also be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar. - 3. The parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title.

All in all, I find no merit in this application, which must be dismissed. Costs are awarded to the respondent.

Dated at Kampala this....................................

Paul Mugamba

Justice of the Supreme Court

Jahrened to the parties<br>I counsel for the applicant<br>27/4/2021<br>Josephiant