Matovu v Kanyije and Another (Miscellaneous Application No. 579 of 2023) [2023] UGHCLD 87 (31 March 2023)

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

# **LAND DIVISION**

# MISCELLANEOUS APPLICATION NO. 579 OF 2023

ARISING FROM CIVIL SUIT NO. 132 OF 2019

# $\mathsf{S}$

# FIFI ESTHER MATOVU::::::::::::::::::::::::::::::::::::

**VERSUS**

#### 1. DR. JAMES KANYIJE

## MRS. KARUNGI EDWIG ::::::::::::::::::::::::::::::::::::

#### 10 Before: Lady Justice Alexandra Nkonge Rugadya

### **RULING**

This application is brought under the provisions of sections 6 and 98 of the Civil Procedure Act, Section 33 of the Judicature Act.

It seeks order that:

- 15 a) The trial of **Civil Suit No. 132 of 2019** between the applicant and the respondents be stayed pending the hearing and determination of **Civil Suit NO. 2230 of 2016.** - b) *The costs of this application be paid for by the respondent.*

## **Brief background:**

The application is supported by the affidavit of the applicant, Fifi Esther Matovu wherein she states that the respondents filed Civil Suit No. 132 of 2019 against her seeking 20 recovery of land comprised in Mengo Block 394 Plot 479 and 480, Land at Sekiwunga, Kajjansi Town Council.

It is averred by the applicant that the said land was originally owned by Dr. William Nganwa as the registered proprietor by October 2012. (See Certificate of title attached on the

#### 25 affidavit in support and marked A').

Her claim of interest in the suit land is through her husband a one Teddy Zola Mpingi who bought the same from Dr. William Nganwa acting through his lawful agent Birungi James

Juber

on the 25th day of March 2015, as per the sale agreement annexed on the affidavit and marked B.

That on the other hand, the respondents claim to have acquired the suit land lrom Akight Project Ltd and consideration of UGX 56,000,000/= (hfty six million shillings only),(See a

5 copy oI the Sale agreement atto.ched and. marked. "C").

The affidavit in objection was deponed by Mr. James Kanyije (1s respondent). His claim was that the respondents purchased the suit land from Akights Projects Lts by an agreement dated 16ih January, 2013 upon which transfer forms were signed by Dr. Nganwa arrd the land transferred in their names on l8ttt March, 2014.

It is the respondents' further claim that the alleged purchase in 2015 was from a person who had no authority to sell and who gave no guarantee for indemnity in case of third party claims, as shown in the agreement; it was also done without a search at the land registry, otherwise the applicant would have established the ownership of the suit land. 10

That in any case Carril Sult llo. 143 of 2075 now Cluil Suit lvo. 2230 ol 2076, was filed after the respondents had already transferred the titles to the suit land into their names and mentions only plot 48O yet the respondents had acquired title to both plots 48O and 479.

That the respondents' evidence of ownership was indefeasible; and that the issue and outcomes different. The agreed issue as per the JSM in respect to this application is which of the two parties has good title.

In submissions he argued further that whereas therefore it is true that both parties claim rights from the same owner, the title to the land had transferred to the respondents such that Dr. Nganwa or his agent no longer had good title to pass to the applicant's alleged husband, one Teddy Zola Mpingi, whose identity has been concealed by the applicant. 20

As such, there are illegalities surrounding the alleged purchase and an order of stay if granted will enable the illegalities to go unabated which will occasion a miscarriage of justice. 25

# Conslderatlon of the lssue:

I have carefully read the pleadings, and submissions filed by each side which I have considered in addressing the issues in this application.

Sectlon 6 oJ the C:hit Ptocedure Act Cap 7I provides as follows: 30

A'. Y1

" No court shall proceed urlth the trlal oJ ang suit or proceeding ln whlch the matter ln lssue is also dlrectlg or substantiallg ln lsslle ln preulouslg lnstituted sult or proceeding betuteen the sr:me partles; or bettaeen partles under whom theg or d.ng of them clalrn, lltigating under the sdme title, u)here that sult or proceedlng ls pending ln the same or ang othe" court llavlng Jurlsdlctlon in Ugd.nda to gra.nt the rellef clalmed".

It is not in dispute that the purported interest of the applicant derives from her claim that her husband had purchased the disputed plots from Birungi James, as an attorney of Dr. William Nganwa.

A perusal of pleadings in Oluil Sult IYo. 132 of 2O79 filed by the respondents against the applicant clearly shows that they bought the suit land from Akrtght Proiect Ltd. 10

Dr. Nganwa in that suit contends that the execution of the sale agreement arising out of the subdivisions was based on fraud and misrepresentation; and the defendants' failure to remit the proceeds of the sale.

The orders sought therein include nullihcation of transactions purportedly executed by the said company on his behalf; and a permanent injunction restraining the defendants from carrying out any activities and transferring any of the plots created from the subdivisions. 15

Neither of the parties to this application is a party to the previously instituted suit: Clrril Sult 1\Io. 2230 oJ 2076, by which Dr. William Nganwa also challenges the authority or power of Akrlght ProJect Ltd (and Mr. Anatoli Kamugisha) to act on his behalf in selling land comprised in Plot 6 Block 394 Eusiro, which was subdivided into various plots, including the suit land. 20

The primary issue therefore posed by this court after looking at the sale agreement presented by the respondents, is whether in selling the two plots of land Aknghts ProJects Ltd did so as

the owner, principal or as an agent of Dr. Nganwa and whether or not he had valid authority to do so. Since neither party in that suit is a party to this suit, that Presupposes that the validity of the respondents' title is premised on the findings of court in that suit. 25

It is the counsel for the applicant's contention and I therefore could not agree more: The legal question in the previously instituted suit which is directly and substantially in issue

in both suits is whether Akight Project Ltd had a good title to pass on to other third parties, (including the respondents in this application). The finding on that score would have a bearing on the outcome of the main suit from which this application arises. 30

U"'d

That court has to decide whether or not Dr. Nganwa upon signing the M. O. U in 2008 retained any authority to deal with that land or when (if at all) the powers were withdrawn from Akights Projects Ltd.

5 In the event that court finds that the latter was fraudulent, breached the M. O. U between them dated 24tt January, 2OOA, Chrll Sult lVo. 132 of2019 will then be geared towards a different direction which might result in either or (both) parties in this application to seek costs/damages against one or the other party in the earlier suit.

There is no doubt as pointed out by counsel for the respondents that his clients bought the land from Akights Projects Ltd and the title duly entered into their names, even before the applicant's husband purchased his interest.

The respondents wish court to belief that no real dispute exists regarding the suit land as sold to them in 2014. However, they do not offer any explanation as to why in 2015, Dr. Nganwa went ahead to {ile the suit to challenge all the subdivisions that were created by Akighls Projects Ltd, including plot 48O which had already been sold by that company to

the respondents. 15

As for plot 479 which is not listed among the said plots this court would still require further and better particulars to determine whether it was left out in the suit inadvertently or deliberately.

This court should also therefore warn itself about any likely dangers of issuing conflicting orders. 20

All in all, having established that issues in question in Clull Sult.lVo, 732 oJ 2O79 are also substantially and directly in issue in previously instituted C\*ttl Sult 223O of 20 76 pending hearing before Justice Susan Kanyange; and given the fact the applicant's claims are derived through Dr. William Nganwa who is the plaintiff in the earlier suit, and the respondents' through the defendant, Akrtghts Project Ltd which received the money as the vendor, this is

a proper application to be granted under sectlon 6 of the C:ilrll Procedute Act.

Each party to meet its own costs. I so order

Alexa aAL u&^

Judge 37\* Iwd"ch, 2023 30

t, <sup>d</sup> B .r\$i(" u I 6 3\ <sup>3</sup> LoL3