Kyagaba v The Registered Trustees of Kampala Archiodiocese (Miscellaneous Application 2593 of 2023) [2024] UGHCLD 262 (7 November 2024)

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### **LAND DIVISION**

#### MISC. APPLICATION NO. 2593 OF 2023.

# (ARISING FROM CIVIL SUIT NO. 133 OF 2014 AND CIVIL SUIT NO. 229 OF 2018)

# KYAGABA CHARLES ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

# THE REGISTERED TRUSTEES OF KAMPALA ARCHIODIOCE :::::::::::::::::::::::::::::::::::: **BEFORE: HON LADY JUSTICE NABAKOOZA FLAVIA. K**

# **RULING**

This application was brought by notice of motion under Section 98 of the Civil Procedure Act, Section 33 and 14 of the Judicature Act, Order 52 rules 1 and 3 of the Civil Procedure Rules and Section 8(1) of the Human Rights Enforcement Act 2019 seeking the following reliefs; -

- i. That an order be issued staying proceedings in Civil Suit No. 133 of 2014 and Civil Suit No. 229 of 2018 pending before this Honorable Court until determination of Misc. Cause No. 128 of 2023 pending before the High Court Civil Division. - ii. Costs of the Application be provided for.

The grounds of the application are contained in the affidavit in support deposed to by Kyagaba Charles (the Applicant herein), and briefly are that;-

a. The Applicant is charged with criminal trespass and malicious damage to 15 property in criminal cases 536 of 2022, 629 of 2022, 691 of 2022 and 746 of 2022 on land in Ziru Wamala Parish Sisa Sub-county Kajjasi- Wakiso district and a matter is pending before this court in Civil Suits No. 133 of 2014 and 229 of 2018 where the Applicant possess lawful court orders issued by this court. 20

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- b. The court having issued lawful orders, the agents of State House with gross impunity violated the same by preferring criminal charges against the Applicant pending in the Chief Magistrate's Court of Entebbe at Entebbe. - c. The Applicant on 7/07/2023 filed Misc. Cause No. 128 of 2023 seeking orders for discontinuance of criminal proceedings in Criminal Cases No. 536 of 2022, 629 of 2022, 691 of 2022 and 746 of 2022 being illegal, unlawful and total violation the Applicant's right to own property and that the same is pending hearing and determination by the High Court Civil Division. - d. The Court found various third parties in contempt of this court's orders in Misc. Application No. 1024 of 2020 and they have since deprived the Applicant of his land working in cohorts with agents of State House who charged him with un-lawful and illegal criminal charges that he is challenging before the High Court Civil and Criminal Divisions. - e. That the third parties have infringed the Applicant's human rights and have disobeyed all court orders by continued construction and altering the status quo. The Applicant has since instituted Misc. Cause No. 128 of 2023 pending in the Civil Division and that it takes precedence over any other matter before any competent court.

f. That it is in the interest of justice the application is granted.

The application was opposed by Mr. Denis Luteete, a holder of Powers of Attorney granted by the Respondent. He deposed that the Respondent is not aware of the criminal cases and that she is not a party to Misc. Cause No. 128 of 2023; that the matters before this court are totally different from the criminal cases of malicious damage to crops of Kyomuhana Margaret, Nalwanga Eva. Mujasi Emmanuel; that the alleged third parties who are alleged to have infringed on the Applicant's rights are not party to the main suit; that the hearing of the main suit can proceed concurrently with the criminal cases, and that the criminal cases are totally different from matters in the instant case. Further, that the Applicant shall not suffer any prejudice with the hearing of the instant suit alongside Misc. Cause No. 128 of 2023 filed in the Civil Division; and that the Applicant is not interested in having the case heard to its logical conclusion, thereby filing numerous applications intended to frustrate the progress of the case.

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<sup>55</sup> In rejoindcr, thc Applicant avcrrcd thal the Respondent being the Registered proprietor of lhe land is aware o['all evcnts that occurred on the suit land including the pending suits. That the subiect matter in Misc. Cause No 128 of 2023 and Civil Suits No. 133 of 2014 and229 of 2018 is the same and that any outcome in Misc. Causc No. 128 ol-2023 will directly aff'ect the outcome in the instant suit. -t'hat thc allcgcd third partics llled Misc. Application No. 237 of <sup>2022</sup> to be added as partics and the salnc was disrnissed by the trial Judge. That the third partics had already bcen rcgarded as trespassers on thc suit land, and were ordered to vacate but have bccn guarded by operatives ol'State House Anti-Corruption Unit. t'hat this court has powors under Seclion 8 ofthe l'luman Rights Enlorcement Act 2019 to grant a stal' ol'procccdings pending the disposal of his I{uman Ilights application rvhich is pcnding ruling on 1210912024. 60 65

Representation: the Applicant was represented by Counsel Namiwulya Racheal and Christine Narnaganda whilc thc l{espondent was represented by Counsel Edwin Busulwa. Both Counsel llled written submissions, included submissions in reioincd which I have considcred.

Counsel for the Applicant raiscd only onc issue for resolution, to wit; i. ll/helher or nol o stuy or pntceedings should be granted?

#### Submissions.

The Appticant's Counscl rcliod on Section 8 (1) of the Human Rights Enforcement Act 2019 rvhich provides lhal, 'where in any proceeding in the High Courl, a questiotl orisas cts lo thc viololion of fundamentol righls or freedont, the presiding jutlge shall intnecliately statt proceedings and delermine the questiotl raised'.'l'hat the above Seclion guides on the procedure to be adopted where during procecdings in thc High Court, a question arises as to violation of lundamental right or liec:dom and that the provision is couched in mandatory terrns with the word SIIALL.

Hc subrnitted lurthcr that thc pcnding civil and criminal suits befbre diflerent courts all touch thc satne suil land whcre the Applicant has his kibanja interest. That thc subjoct matlcr in Misc. Causc No. 128 of 2023 is the same as that in Civil Suits No. 133 ol-2014 an<l 229 ot'2018 which is the suit land comprised in Zziru W anala Parish Sisa Sub County Ka.i.iasi Town Council Wakiso District.

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That any ruling/judgment from Civil Suit No. 133 of 2014 and 229 of 2018 shall have a direct bearing/effect on the pending Human Rights Application vide Misc. Cause No. 128 of 2023.

He also relied on the case of Kitutu Mary Gorretti Kimono Vs Attorney General Misc. Application No. 76 of 2023 where Justice Okuo Jane Kajuga held that:

it will be futile and costly exercise for the court to proceed with the trial and for the prosecution to call its witnesses and proceed to lead evidence, and even for the accused to defend themselves, only for the court of appeal to decide otherwise, ... I accordingly stay proceedings pending the decision of the court of Appeal in civil Appeal No. 1525 of 2023.

He further relied on the case of **Paul Wanyoto Vs SGT Oumo & AG Misc.** 105 Application No. 2 of 2021 where Justice Gidudu Lawrence in consideration of Human Rights Enforcement Act of 2019 held that

> under the Human Rights Enforcement Act, allegations of torture must first be resolved before the trial proceeds. The Applicant seeks to nullify the trial from

which a warrant of arrest has been issued against him. With all the sympathies 110 for the complainant in the main criminal case, in view of the appeal filed against the decision of this court, I'm constrained to stay the trial of criminal case No. 75 of 2019 and consequently the warrant of arrest issued against the Applicant to allow the court of Appeal pronounce itself on the legality of the case before this court. 115

> That this court should be pleased to apply the same precedents, which is the correct position of the law and stay CS No. 133 of 2014 and 229 of 2018 until determination of Misc. Cause No. 128 of 2023 pending before the Civil Division.

> In reply, Counsel for the Respondent also relied on Section 8 (1) of the Human **Rights(Enforcement) Act Cap 12 and the cases of Kitutu Mary Gorret Vs AG** and Paulo Wanyoto Vs SGT Oumo & AG (supra) and submitted that the same were cited out of context. That from the above Section, the proceedings that ought to be stayed are those where a question as to the violation of a fundamental right or freedom arises and are stated criminal cases. Secondly, that the alleged illegal Human Rights violations were allegedly perpetuated by the agents of State House

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Anti-Corruption unit and third parties who are linked to the cited criminal cases but the Respondent herein is not citcd or linked to the human rights violations. That the said agcnts olState House Anti-Corruption Unit and the third parties are not parties to thc consolidatod Civil Suits No. 133 ol'2014 and 229 of 2018.'fhat the subject rnallcr in thc main suit is dill'crent fiorn Misc. Cause No. 128 of 2023 and that the ruling in thc application cannol afl'ect the consolidated Civil Suits.

135 Counscl subn-rittcd lurther that thc Applicant's claim that he has been deprived ol'his right to own propcrty is unsustainablc sincc the question of owncrship of the said Kibanja is under contcst vidc thc consolidated suits. That until the question ol'owncrship ol'that Kibanja is rcsolved. thc applicant cannot assert any ownership rights to the sar.ne.

# Resolution of the I ssue.

145 I shall first deterrrinc whetl.rer thc Ilurnan Rights (Enforcernent) Act, 2019 is applicable to stay o[' procccdings.

-fhe rccord shows that thc Applicant secks to stay proceedings in consolidated Civil SuitNo. 133 ol'2014 antl 229 of 201 8. His grounds are that he filed Misc. Cause No. 12812023 pcnding in thc Civil Division seeking discontinuance of criminal cascs allcgcdly illcgally lodgcd against him and that it has a likelihood on the outcomc on CS No. 133 ol'2014 and 229 ol20l8.

-lhe record also shows that thc Applicant, together with a onc Jjuko Lawrcnce Salongo on 1010812023 lilcd Misc. Cause No. 128 of 2023 arising frorn Criminal Cases No. 536. 629. 630, 691 . 746 and 710 of 2022 which are befbre the Chief Magistrates court lintebbe lbr various orders. They brought the said application against the Attorney General. Kitirnbo .lanat Kirunda, Eroku Stanley. fwinamasiko .lus1us. Karci.ja lvan. Margrct Kyor-nuhangi. Eva Nalwanga, Asimwe Collins, Mujasi lrrnmanucl and Micheal .likens Katcnde.

I have alrcady rcproduccd thc provisions of Section 8(1) the Human Rights (Enforcement) Act,20l9 ancl ncccl not roitcratc thcur. It is a lact that thc said law came inlo lorcc on thc l5'r' da1, ol' Novcrnbcr, 2019. according to its colrrrcnccrrcnt clatc. In Mayanja & 7 Ors vs. Wantante & 5 Ors (Civil Suit

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No. 497 of 2018), my learned Sister Nakachwa J pointed out that, 'the importance 165 of a commencement date is that it gives the date when the law becomes *operative...* Further, it is also trite that laws do not have retrospective application unless expressly provided for (Mayanja Joshua & Others vs Wantante Samuel & Others, supra; Wambewo vs Mazelele HCMA No.128 of 2013; Lukwago & 13 Ors Vs Electoral Commission & 2 Ors (Misc. Cause No. 431 of 2019 170 Noah Owora vs James Magode Ikuya & Others HCCS No.30 of 2022).

In this case, it is a fact that before the said commencement date, Civil Suit No. 133 of 2014 and Civil Suit No. 229 of 2018 had been filed and were on going. Further, there is no indication in the Human Rights (Enforcement) Act, 2019, that any of its provisions was intended to apply retrospectively. Therefore, I find that the said Statute, in particular Section 8(1) of the same, does not apply to matters which were pending before its enactment, in particular Civil Suit No. 133 of 2014 and Civil Suit No. 229 of 2018.

It is evident that the cases cited by Counsel for the Applicant involved matters filed after the enactment of the Human Rights (Enforcement) Act 2019 (Kititu Mary Goretti Kimono vs AG, supra; Paul Wanyota vs Sgt Oumo Joshua, supra).

I am mindful that the application was also brought under Section 98 of the Civil Procedure Act, Section 14 and 33 of the Judicature Act which provide for inherent power of this court. However, it is not justifiable to invoke the power in the circumstances of this case.

Furthermore, I addressed myself to the provisions of Section 6 of the Civil Procedure Act Cap.282 which also provides for stay of proceedings. It specifically 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.*

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As far as those provisions are concerned, the record indicates 3 (three) suits pending disposal by the High Court, that is; Civil Suit No. 133 of 2014 and Civil Suit No. 229 of 2019 pending at the High Court, Land Division; and Misc. Cause No. 128 of 2023, pending in the High Court, Civil Division. Further, the Respondent averred that there are third parties who are not parties to this application and the other suits. Indeed, the violations and criminal acts pleaded under Misc. Cause No. 128 of 2023 were allegedly committed by persons other than the Respondent herein. Accordingly, the above provisions are literally inapplicable to the Applicant's plight as well.

For reasons stated above, I find no justification for this court to stay proceedings in CS No. 133 of 2014 and CS No. 229 of 2018. In conclusion, the issue is resolved in the negative.

Consequently, the application lacks merit and is hereby dismissed with costs.

$\frac{1}{\text{day of}}$ Signed, dated and delivered at Kampala this...

Nabakooza Fla**via. K** Judge

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