Naigaga v Namusoke and 10 Others (Civil Appeal 51 of 2015) [2023] UGHCLD 285 (27 February 2023)

## THE REPUBLIC OF UGANDA

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

#### CIVIL APPEAL NO. 0051 OF 2015

(Arising from Civil Suits No. 12, 13, 14, 15, 16, 17, 18, 18, 19, 20 & 21 of the Chief Magistrates Court of Iganga at Busembatia)

## **NAIGAGA FARIDAH**

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**APPELLANT**

#### **VERSUS**

1. NAMUKOSE FATUMA 2. NEDAGIRA MUZAMIRU 3. MRS NTALO 4. SPECIOZA MBASALAKI 5. MAGOMA JAMES 6. **JOSEPH (MOTOR MECHANIC) :::::::::::::::::::::::: RESPONDENTS** 7. MAGOMA ALI 8. MASEGE IBRAHIM 9. GAMOSI RICHARD **10. MASEGE BIRALI** 11. NAIRUBA SARAH

## **BEFORE: HON. MR. JUSTICE MICHAEL ELUBU**

#### **JUDGMENT**

This is an Appeal arising from the Ruling and Orders of Her Worship Nassozi Rehema Ssebbowa in Civil Suit No. 18 of 2014 of the Chief Magistrates Court of Iganga at sitting at Busembatia.

#### **Background**

On the 14<sup>th</sup> of August 2014, the Appellant, Naigaga Faridah, filed Civil Suit No. 12 of 2014 against the 2<sup>nd</sup> Respondent Nedagira Muzamiru. On the same day, she

also filed 9 other suits against the 3<sup>rd</sup> to the 11<sup>th</sup> Respondents, and which were registered sequentially as Civil Suit No. 13 onwards to Civil Suit No 21 of 2014. These claims were based on similar facts. In all, the Appellant states she is the biological daughter, customary heiress and Administratrix of the Estate of the late Maido Eriasa and sued the Respondents in that capacity. The subject is the suit land which is located in Nakazinga Local Council 1 Zone, Namutumba Central Ward, Namutumba Town Council, Namutumba District. That the land is part of the estate of the late Maido Eriasa in which she has a beneficial interest which she states that she is duty bound to protect. That the late Maido Eriasa utilized the suit land until 27<sup>th</sup> of October 2008 when he passed away and was buried, on the same land.

That about 2009, the Appellant discovered that the 2<sup>nd</sup> to 11<sup>th</sup> Respondents had without her consent or approval entered on the suit land and started cultivating it. They also caused other persons to trespass.

As a result, the Appellant sought orders for a Declaration that the suit land is part and parcel of the estate of the late Maido Eriasa in which as his biological daughter and customary heiress, the Appellant has a beneficial interest; a Declaration that the Respondents (as Defendants) are trespassers on the suit land; Orders evicting the Respondents from the suit land; Permanent injunctions; Special Damages; General Damages; Mesne profits; Interest and Costs of the suits.

On the 11<sup>th</sup> of December 2014, the 1<sup>st</sup> Respondent, Namukose Fatuma, also filed Civil Suit No. 18 of 2014, against the Appellant - Naigaga Faridah. Her claim was for the revocation of letters of administration. It was stated that the 1<sup>st</sup> Respondent is the widow of the late Maido Eriasa who passed away in 2008. That she married Maido in 1998 and together they had 5 children 2 of whom were alive. That Namukose Fatuma is a step mother to the Appellant. In 1991, the late Maido and the 1<sup>st</sup> Respondent purchased land in Nakazinga Zone in Namutumba Town Council. Namutumba District, from one Amin Mukose. To the 1<sup>st</sup> Respondent's surprise

however, the Appellant fraudulently obtained letters of Administration in 2012. That the Appellant then forcefully grabbed and mismanaged the estate including selling off part of the land.

The 1<sup>st</sup> Respondent sought orders that the Appellant's Letters of Administration be revoked or recalled; All activities done by the Respondent in respect of the estate of the late be nullified; General Damages; and Costs of the suit.

When the Civil Suit No. 18 of 2014 was set down for hearing, a prayer was made that that all suits filed by the Appellant be stood over until Civil Suit No. 18 of 2014 filed by the 1<sup>st</sup> Respondent is determined. The basis of the prayer was that all the matters were premised on C. S. No 18 of 2014 which would determine who the rightful proprietor of the land was. That since ownership was contention, it would be improper to proceed with any other matter before determining that ownership first.

In her ruling, the Trial Magistrate stayed all Civil Suits filed by the Appellant pending the determination of C. S. No. 18 of 2014 (filed by the $1^{st}$ Respondent). Being dissatisfied with that orders of the trial Court, the Appellant filed this appeal with the following grounds:

- 1. The Learned Trial Magistrate erred in law when she upheld a preliminary objection by Counsel for the Respondents that all suits Nos. 12, 13, 14, 15, 16, 17, 19, 20 and 21 of 2014 should be stayed pending disposal of Civil Suit No. 18 of 2014 since all cases are premised on it, which was not a pure point of law to dispose of the said Civil suits. - 2. The Learned Trial Magistrate erred in law when she found and held that "this Court cannot determine the sales and their legality in the above civil suits before investigating the issue of Letters of Administration and the purported will" thereby exercising her discretion unjudicially or wrongly.

## **Resolution**

### Grounds One & Two

The Learned Trial Magistrate erred in law when she upheld a preliminary objection by Counsel for the Respondents that all suits Nos. 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 of 2014 should be stayed pending disposal of Civil Suit No. 18 of 2014 since all cases are premised on it, which was not a pure point of law to dispose of the said Civil suits.

The Learned Trial Magistrate erred in law when she found and held that "this Court cannot determine the sales and their legality in the above civil suits before investigating the issue of Letters of Administration and the purported will" thereby exercising her discretion unjudicially or wrongly.

#### Determination.

The Parties were granted leave to file written submissions and the same have been studied by court but shall not be reproduced here.

In determining this matter, the court is reminded that being a first appeal, it must reconsider the evidence, evaluate it itself and draw its own conclusions ... (See Uganda Breweries Limited Vs. Uganda Railways Corp S. C. C. A. No. 6 of 2001).

Although not expressly stated by any o he parties, the order sought is essentially one of Stay of suit as provided for in Section 6 of the Civil Procedure Act Cap. 71 and Section 209 of the Magistrates Court Act Cap. 16.

## **Section 6** of the **Civil Procedure Act Cap. 71** stipulates:

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

# Section 209 of the Magistrates Court Act Cap. 71 stipulates:

No Magistrate's 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 or between parties under whom they or any of them claim, litigating under the same title. where that suit or proceeding is pending in the same or any other court having original or appellate jurisdiction in Uganda to grant the relief claimed.

This Court has relied on the Indian legal textbook Civil Procedure by C. K. Takwani, (8<sup>th</sup> Edn, EBC 2017) pages 61-64 in which the author interprets Section 10 of the Indian Code of Civil procedure which is couched in substantially same terms as our Section 6 of the Ugandan Civil Procedure Act. In my view similar principles would be applied in interpreting the provisions.

## Section 10 of The Indian Code of Civil Procedure stipulates

No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any

other court in India having jurisdiction to grant the relief claimed, or in any court beyond the limits of India established or constituted by the Central Government and having like jurisdiction, or before the Supreme Court."

In analyzing Section 10 of the Indian Code of Civil Procedure, the learned authors of C. K. Takwani, Civil Procedure (8<sup>th</sup> Edn, EBC 2017) at pages 61-64 state: For the application of this section, the following conditions must be satisfied:

- 1. There must be two suits, one previously instituted and the other subsequently instituted. - 2. The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit. - 3. Both the suits must be between the same parties or their representatives. - 4. The previously instituted suit must be pending in the same court in which the subsequent suit is brought or in any other court in India or in any court beyond the limits of India established or continued by the Central Government or before the Supreme Court. - 5. The court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the subsequent suit. - 6. Such parties must be litigating under the same title in both the suits.

There are two suits here, but strangely, it is proposed that the previously filed suits should be the ones stayed. It is also clear that the matters in issue are wholly divergent. The Appellant sought orders that the contested land forms part of the estate of the deceased Maido Eriasa, on top of a declaration that the defendants in her suits are trespassers and should be evicted. The respondent on the other hand,

prayed for the letters of administration issued to the appellant to be recalled and all activities on the suit land to be nullified.

The 1<sup>st</sup> respondent is not a party to the earlier suits and cannot be said to be a party common to both proceedings. It has not also been showed whether any of the other defendants claim through or are in any way connected to her.

It is clear that there are no grounds established for staying the appellant's suits and therefore the learned trial magistrate's order was issued in error.

In the result, this Appeal is allowed and the Ruling and Orders of the Trial Magistrate are set aside. The costs of this Appeal to be in the cause.

**Michael Elubu** Judge 27.02.2023