Kikonyogo and Another v Drasiku (civil suit No. 0483 0F 2023) [2024] UGHC 1206 (11 July 2024)

Full Case Text

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### **LAND DIVISION**

### CIVIL SUIT NO. 0483 OF 2023.

- 1. KIKONYOGO JOSEPH:::::::::::::::::::::::::::::::::::: - 2. ADONG FLORENCE KIKONYOGO (Suing through her lawful Attorney Ayaa Lillian)

#### **VERSES**

DRASIKU AMOS ::::::::::::::::::::::::::::::::::::

## **BEFORE: HON LADY JUSTICE NABAKOOZA FLAVIA. K**

#### **RULING**

- 1. The Plaintiffs sued the Defendant for a declaration that the Defendant became registered on part of the Plaintiffs' land fraudulently; a declaration that the Defendant's actions and activities of forcefully entering on to the suit land, creating access road through the Plaintiffs' land amount to trespass; an order for cancellation of the land title comprised in Block 102 Plot 1230 Land at Jakolera Wakiso District; an order of vacant possession; eviction order; permanent injunction; mesne profits; general damages and costs of the suit. - 2. The Defendant filed his written statement of defence wherein he denied the contents of the plaint and contended that the suit land has always had an access road and it belongs to him. That his land title does not protrude into the Plaintiffs' land, and that he has never trespassed on the plaintiffs' land but rather the plaintiffs trespassed on his. He prayed that the suit be dismissed with costs. - 3. **Representation:** The Plaintiffs were represented by Counsel Mwebesa Richard from M/s Mwebesa Richard Advocates & Solicitors while the Defendant was represented by Counsel Leku James from M/s Solace Advocates. - 4. When the suit came up for scheduling on 2/04/2024, Counsel for the Defendant raised a preliminary objection that the parties in this suit are also litigating at Kasangati Chief Magistrates Court. Court directed Counsel for the parties to file submissions in respect of this preliminary objection and they complied.

Hahmag 04/07/2024

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#### The Defendant's submissions

- 5. Counsel relied on Section 6 of the Civil Procedure Act and the case of Mugisha Moses Vs Finance Trust Bank Ltd HCMA No. 143/2017 to submit that the provisions of the said section are mandatory, as dictate that 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 or proceeding between the same parties. That Civil Suit No. 15/2023 at the Chief Magistrates Court of Kasangati at Kasangati was filed prior to this suit since it was instituted on 19/05/2023 and served on the Plaintiffs/Defendants on 6/06/2023 yet the instant suit was filed on 4/6/2023 and served on the Defendant/Plaintiff on 9/8/2023. That two the suits are pending, between the same parties, and concern the same subject matter of the suit land. - 6. He submitted further that this court has to determine questions to do with whether the Defendant is a trespasser, permanent injunction, mesne profits, eviction order, general damages, fraud and cancellation of title. That the issues are similar except for cancellation of title which can be applied for before the High Court in accordance with the **Land Amendment Act, 1/2004**. That Section 31 of the same Act is for referring a matter after determination in the Magistrates Court to the High Court for grant of consequential orders. Therefore, that **Section 6 of** the Civil Procedure Act bars this court from hearing any proceeding because there is a prior suit. - 7. Counsel also relied on Order 7 Rule 1 (e) of the Civil Procedure Rules and the case of Auto Garage & Ors Vs Motokovu (No. 3) 1971 E. A at pg. 519 for his submission that the plaint does not disclose a cause of action and when it arose. That the question of whether a plaint discloses a cause of action is determined upon perusal of the plaint (See. Wabwire Charles Vs Kazoora Robert HCCA No. 187/2019). He further relied on the same Order and Rule and the case of Zachary Olum & Anor Vs. AG (Constitutional Petition No. 6/1999) to submit that the plaintiffs suit is frivolous and vexatious and hence constituting an abuse of court process. Counsel also cited the Black's Law Dictionary Vol.12 to define frivolous to mean an instance where a pleading is clearly insufficient on its face and does not controvert the material points of the opposite pleading presumably interposed for mere purposes of delay or embarrassing the opponent; and vexatious to mean a proceeding not *bonafide* and merely wishing to annoy or embarrass an opponent or when it is calculated not to lead to any practical result.

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B. Further, that the Plaintiffs made averments under paragraph 3 of the plaint that the defendant while processing his title, he protruded into their land; that they did not attach any survey report to scientifically show the alleged trespass or prove the allegation in any way. That the Defendant on his part under paragraph 4 of his written statement of defence showed that he did not process or mutate the tltle by himself and he is innocent; and that he also shows how he engaged a surveyor to make corrections on the title on realizing that the title to the suit land had plotting errors. That the averments by the plaintiffs are full of falsehoods and speculative, which makes the suit frivolous and vexatious. Counsel prayed that this suit and applications therefrom be dismissed, and the Defendant granted an order to vacate the caveat lodged by the Plaintiffs on land comprised in Kyaggwe Block 111 Plot 3455 land at lvlawoto, Mukono District.

# 9. The Plaintiffs' submissions

The Plaintiffs' Counsel also relied on Section 6 of the CPA and submitted that the section encompasses the principle of lis pendens rule which means that, court cannot proceed with the trial of any suit where the matter in issue is substantially in issue in previous instituted suit in a court of law which has jurisdiction. That the case of Attorney General Vs John Amran Wahabyalire HCMA No. 302 of 2023, Justice Lubega Farouq relied on the case of fnternational Hotel Ltd Vs Hotel Diplomat Ltd & Anor CS No.227 of 2011 which laid down three tests for determining whether the case offends Lis Pendens Rule:

- a. The litigation is between the same pafties. - b. The cause of action is the same. - c. The suit is pending in the same court or any other court having jurisdidion to grant the reliefs claimed.

10. He admitted that the pafties in both suits are the same. That however, the cause of action in the suits are different. That in CS No. 483 of 2023 the cause of action is fraudulent registration of land and trespass while in CS No. 15 of 2023, the cause of action is solely trespass. On the third ground, Counsel admitted that the two suits are pending before courts of jurisdiction, but that it is only the High Court under Section 177 of the RTA with powers to cancel a land title. He relied on the case of Hilda Wilson Namusoke & 3 Ors Vs Owalab Home Investment Trust & Anor SCCA No, 1 5 of 2 0 1 7 where it was held that, "the power to cancel ceftificates of title where fraud is alleged is vested in High Court.... to direct the

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Commissioner to effect any order of cancellation ...... An aggrieved party should straight away file a suit for adjudication on the issue".

- ll. Counsel contended that the Defendant was served with a notice of intention to sue on 18105/2023 but hurriedly filed CS No. 15 of 2023 on l9l01l2023 without serving the Plaintiffs with his notice of his intention to sue. That under sections 17(2) and 33 ofthe Judicature Act, the instant sult d oes not offend lrs pendens rule but the suit filed in Kasangati vide CS No. 15 of 2023. That the suit in the Chief Magistrates Court Kasangati is an abuse of court process and should be dismissed with costs to avoid making contradictory judgments. - 12. About lack of cause of action, Counsel relied on the case of Tororo Cement Co. Ltd Vs Frokina International Ltd CS No. 2 of 2001 and Kapeka Coffee Works Ltd Vs Npart CACA No, 3/2000 for his submission that the plaintiffs enjoyed a right over the bibanjas they bought from different neighbors and that the attached land title in the names of the Defendant covers part of the plaintiffs' land. That the suit discloses a cause of action and prayed that the preliminary objection is dismissed with costs to the plaintiff.

## Reioinder bv Defendant's Counsel

13. In rejoinder, the Defendant's Counsel submitted that service of a notice of intention to sue is not mandatory and referred Court to the case of Kampata Capital City Authority Vs Kabandize & 20 Ors SCCA No.13 of 2014. That the Defendant was served with a notice of intention to sue on LBlO3l2O23 and waited to be sued but in vain. That instead, the plaintiffs repoted him to Kasangati Police where he was charged with the offence of criminal trespass and threatening violence vide Criminal Case No. 23 at the Chief Magistrates Court of Nabweru at Matugga and the court had no jurisdiction to try the matter. That after he was released on bail on 4105/2023, he filed CS No. 15 of ZOZ3 on 1310512023 at Kasangati Chief Magistrates Court. That the facts in the case of Hilda Wilson Namusoke(supra) are distinguishable from the instant case which is not dealing with the power of the Commissioner Land Registration to cancel title but the proprietary of two suits based on the same facts and parties, proceedings in two different courts. That the issue of whether or not to cancel the land tifle shall be determined at the end of the case if the Plaintiffs emerge as the successful parties and can apply to court for consequential orders. That the Chief Magistrates court has jurisdiction to try matters where the subject matter is land under the RTA

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(See. Wilson Osuna Otwani Vs Apollo Yeri Ofwono HCCS No. 77/2012 from Tororo Cs No. 23/2008).

- 14. From the above analysis, the objection is that the suit offends the *lis pendens* rule provided for under Section 6 of the Civil Procedure Act. The Defendant's Counsel also objected that the plaint discloses no cause of action against the Defendant, and that the suit is frivolous and vexatious. - 15. Therefore, the issues for determination are; - i. Whether HCCS No. 483 of 2023 should be stayed? - ii. Whether HCCS No. 483 of 2023 does not disclose a cause of action *against the Defendant?* - iii. Whether HCCS No. 483 of 2023 is frivolous and vexatious? - iv. Remedies available?

## Determination of Issue 1: Whether HCCS No. 483 of 2023 should be stayed?

16. Section 6 of the Civil Procedure Act provides that:

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 should or proceedings between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where the suit or proceeding is pending in the same or any other court having jurisdiction in Uganda to grant the relief claim.

17. The lis pendens rule precludes one court from considering a case (lis) that is already pending (pendent lite) before another court concerning the same dispute. The rule was considered by Justice Madrama in Shumuk Springs Development Ltd & 3 Ors Vs Bonney Mwebesa Katatumba & 6 Ors HCCS-0375-**2009**, who observed that the test is:

.... whether there is a previously instituted suit or proceeding between the same parties. Secondly the court has to determine whether the matter in controversy in the second suit is also directly and substantially in issue in a previously instituted suit. Thirdly, this suit instituted prior in time must be before a court of competent jurisdiction.

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- 18. In this case, it is not in dispute that the suits are between the same parties, and regarding the same subject matter. There is no doubt that the respective courts wpre the suits were filed have competent jurisdiction to handle them. - 19. The above notwithstanding, unlike the suit in the Chief Magistrate's couft, the Plaintiffs in HCCS No. 483 of 2023, seeks, among others, an order of cancellation of the Defendant's title to land comprised in Block 102 plot 1230 land at Jjokolera Wakiso District. Legally, only the High Court can make an order to that effect under Section L77 of the Registration of Titles Act. This then implies that whereas the Chief Magistrates Court will deal with the claim of trespass before it, it will not conclusively and exhaustively dispose of the dispute between the pafties. As indlcated by the Defendant's Counsel, the Plaintiff then, if successful, will possibly have to apply for a consequential order to this court under Section 76 (3) ofthe Land Act T L120041. Th is will definitely be a multiplicity of proceedings, which can be avoided if the High Court deals with the parties' dispute. - 20. I am cognizant that under Section 6 of the Civi! Procedure Act, a former suit must proceed if the cout before which it is filed has jurisdiction to handle it; and that the latter suit must be stayed. However, being alive to the need to avoid multiplicity of proceedings, I am hesitant to follow that approach. - 21. I am aware that under Section L7(2) ot the Judicature Act, the High Court has power, with regard to its own procedures " and those of the Magistrates, Courtl'to make orders for expeditious trials. In addition to that, under Section 18(1Xb)(ii) of the Civil Procedure Act, this court has powers, exercisable upon application of the pafties or " on its own motior-l' , and at any stage, to " withdraw any suit or other proceeding pending in any court subordinate to it, and...try or dispose of the suit or proceediny''. - 22. In this case, I am inclined to invoke Section L7(2) of the Judicature Act together with Section 18(lxbxii) of the Civil Procedure Act for the sake of ensuring that the controversy between the partles is exhaustively dealt with by the High court without delay and causing a multiplicity of proceedings. - 23. Consequently, I find the first issue in the negative.

# Issue 2: Whether the suit discloses a cause of action against the Defendant

24. Under O.7 r 11(a) of the Civil Procedure Rules, a plaint may be rejected by the court if it does not disclose a cause of action. The Court of Appeal in Kapeka Coffee Works Ltd V NPART (supra) held that in determining whether a plaint discloses a cause of action, the court must look only at the plaint and its annexures if any and nowhere else.

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- 25. It was the Defendant's submission that the Plaintiffs have not demonstrated in their pleadings that they enjoyed a right to the suit land since all the purchase agreements attached do not indicate that they acquired the suit land through purchase; or that the defendant mutated and transferred the suit land into his names. That the documents attached show that the administrators of the estate namely Yahaya Kato, Hamida Busuulwa Nalongo and Madia Namale mutated the title of the suit land and the Defendant only transferred what was mutated to him by the Administrators and that it had the suit land clearly earmarked as access road. That the Plaintiffs failed to show that the suit land belonged to them by purchase but rather the defendant demonstrated that the suit land belongs to him. - 26. In reply, it was argued that the plaintiffs enjoyed a right over the bibanja they bought from different neighbors and attached a land title in the names of the Defendant which covers pat of their land.

- 27. I have carefully examined the Plaintiffs'plaint in HCCS No. 4B3l 2023. The cause of action is briefly as follows. That on 2510912015,1311012074 and on22/12/20t4 the Plaintiffs bought land from different person being part of land comprised in Block 102 Plot 1420. That during purchase, there was no access road since it was family land but, on 2710512022, the Defendant forcefully trespassed on the Plaintiffs' land, created a land title for BIock 102 Plot 1230 and an access road without their knowledge and consent. That around August 2022, the plaintiffs wanted to survey their land and make a sub-division but were informed that their land had already been issued with a title. That the Defendant's land comprised in Block 102 Plot 1420 registered protrudes in their land by 30 feet. The Plaintiffs attached purchase agreements daled 25 /09 120L5,13 I 70/2074 and 221 t2/20L4 portraying their interests on the land. They also allege that the access road was created in May 2022 after the Defendant got title and during the time when they were enjoying possession of the suit land. - 28. In view of those revelations, this court finds that the plaint discloses that the Plaintiffs enjoyed a right; that the right was violated; and that the defendant violated that right. Accordingly, the plaint in HCCS No. 483/2023 discloses a cause of action against the Defendant. The second issue is found in the aFfirmative.

# Issue 3: Whether the suit is frivolous and vexatious?

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- 29. Having found that the suit discloses a cause of action, it follows that the same is not frivolous and vexatious. - 30. In conclusion, the preliminary objections are overruled. In addition, I hereby invoke Section 18(lxbxii) of the Civil Procedure Act and order that Civil Suit No. 75 of 2023 at the Chief Magistrates Court of Kasangati at Kasangati be withdrawn and transferred to this court for disposal. Further orders shall be made thereafter. - 31. I make no orders to costs.

32. Signed, dated and delivered at Kampala this.....t1!.......... day of July 2024

Nabakooza Flavia. K ludge