Nalwoga v Uganda (Criminal Revision Cause 1 of 2021) [2022] UGHCCRD 96 (30 November 2022)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI CRIMINAL REVISION CAUSE NO. 01 OF 2021

# (Arising from Nsangi Magistrate's Court Criminal Case No. 183 of 2020)

NALWOGA ANNA LILIAN……………………………………….…. APPLICANT

#### VERSUS

UGANDA……………………………………………………………. RESPONDENT

# 10 BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO. ANTHONY OJOK, JUDGE

#### Ruling

The applicant brought this application by way of Notice of Motion under Section 33 of the Judicature Act, Section 50 (1) (b) and (5) of the Criminal Procedure Code Act, Order 52 Rules 1, 2 of the Civil Procedure Rules and Rule 3 of the Judicature 15 Criminal Application Rules against the respondent seeking the following orders;

- 1. That the order of the Magistrate Grade 1 at Nsangi declining to hear Application No. 29 of 2021 on its merits be revised, set aside and/or the same be heard on merits. - 20 2. That the criminal proceedings in Criminal Case No. 183 of 2020, Uganda v. Nalwoga Anna Lillian be stayed pending hearing and determination of Civil Suit No. 160 of 2019 (at High Court Land Division) vide Anna Nalwoga & Another v. Tamukedde Mathias (thereinafter referred to as "the civil suit"). - 25 - 3. That in the alternative that misc. application No. 29 of 2021 seeking to stay criminal proceedings vide No. 183 of 2020 at Nsangi be heard on its merits and determined by another Magistrate. - 30 4. That no orders as to costs be made.

This application is supported by an affidavit deponed by the applicant, whose grounds, I will not reproduce.

An affidavit in rejoinder was deponed by Ms. Tukamushaba Amelia in opposition to the application, the grounds of which I will not reproduce.

### Representation:

Mr. Steven Kalali appeared for the applicant, while R. S. A George Kohohira appeared for the respondent. Counsel for the applicant made written submissions while both counsel also made oral highlights of their submissions in open court.

#### 5 Submissions:

# Issue one: whether the instant application should be granted?

Counsel for the applicant submitted that it is trite law that every allegation of fact as alleged in an affidavit must be replied to or averred to specifically or if not the respondent is deemed to have admitted the same. (See: Charles Onyango Obbo and

### 10 another v. Attorney General, Constitutional Appeal No. 2 of 2002, where it was stated that denial has to be specific and not general).

Counsel cited Section 209 of the Magistrate's Courts Act regarding stay of suits. It was submitted for the applicant that she is being charged with the offence of criminal trespass, yet she bought the suit kabanja from Kinobe Francis in 2008

- 15 whereof he claims ownership as bonafide occupant. That in 2015 upon taking possession and starting to utilize the suit land, the complainant demolished her house and cut down her crops whereof she lodged Criminal Case No. 0703 of 2015 against him at Nsangi Magistrate's court and due to the continued acts of the complaint she reported another case vide SD REF 14/21/11/2020. - 20 It was submitted that the applicant then filed High Court Civil Suit No. 160 of 2019 for a declaration of ownership of the suit land. That upon filing the said suit the respondent applied for an injunction which was not granted hence lodging another criminal case vide No. 183 of 2020 before this court. Counsel submitted that this amounts to abuse of court process. - 25 Counsel further submitted that the issue of determination of the question of ownership of the disputed land can only be investigated by a civil court pending stay of the criminal case which will not prejudice the respondent.

Counsel relied on the case of Musumba Yahaya and another v. Uganda, Criminal Revision Cause No. 4 of 2019 cited with approval in Okello Chris Otama & Another 30 v. Uganda, Criminal Session case No. 639 of 2013, for the holding that;

"Issues of land should not be confused with criminal issues. Claim of ownership is a civil right that ought to be allowed to be proved in a civil court and should never be criminalized as this would amount to persecution. Land matters have been criminalized and courts of law are 35 convicting accused persons who have a constitutional right to claim what truly belongs to them."

It was submitted for the Applicant that the law on criminal revision is to be found in Section 48 of the Criminal Procedure Code Act and Section 33 of the Judicature Act. That in the instant case there are two competing interests on the suit land situated at Ntatikole and the complaint in Criminal case No. 183 of 2020 is

- 5 Tamukende Mathias the respondent herein. That in the civil suit before the High Court Land Division, the applicant seeks to be declared a bonafide occupant on the suit land since she enjoys security of occupancy under Article 237 (8) of the Constitution and the Land Act. - Counsel prayed that the criminal proceedings be stayed under Section 48 of the 10 Criminal Procedure Code Act, Section 33 and Section 17(2) of the Judicature Act. It was submitted that where there are criminal proceedings arising out of complaints or offences allegedly committed during the pendency of the civil suit, involving the same facts and allegations as well as where the issue of ownership is at stake, then it is proper to stay criminal proceedings until determination of civil - 15 rights. Counsel relied on the case Sebulime Baker v. Uganda, Criminal Appeal No. 21 of 2018 in support of his submission.

For the respondent it was submitted that the applicant filed the application under Section 50 (1) (b) and (5) of the Criminal Procedure Code Act claiming that there was an error in the proceedings however, did not raise any error. That in the 20 applicant should have applied for stay of proceedings in the criminal case before Nsangi Court and not made a revision application. That the procedure the applicant is trying to adopt is the wrong procedure. Counsel relied on the case of Hajjat Sefuna Kikangula v. Ngobi, Criminal Revision Application No. 1 of 2022.

It was submitted that the applicant should have lodged an appeal and not a revision 25 application as there is no error manifested on the record. That the same application was heard and determined thus, is Res judicata.

Counsel further submitted that D. P. P or Uganda was not a party to the Civil Suit pending before High Court. That no law however, precludes the D. P. P from preferring charges whose facts are similar to another case that is a civil matter.

30 Counsel cited the case of Sarah Katutu B. v. Uganda, S. C. C. A No. 3 of 2018 in support of his submission.

Counsel noted that both cases that is criminal and civil can proceed concurrently and no law bars it.

Counsel for the respondent concluded that paragraph 3 of the application states 35 that in the alternative the application for stay of criminal proceedings be heard and determined by another officer. Otherwise it will mean that the application was dismissed summarily without being heard on its merit.

In rejoinder it was submitted that this matter is not Res judicata and this court has supervisory powers under Section 17(2) of the Judicature Act, Sections 48 and 50 of the Criminal Procedure Code Act over Magistrate Courts.

Counsel further submitted that the instant case involves competing interests that is 5 bibanja and registered interests over land. That the complainant now in the High Court is the defendant and in his defence there is a counter claim. Counsel argued that each case must be determined on its own facts and in this case no injustice would be suffered by the respondent. Counsel concluded that criminal matters have no limitation.

10 Analysis of court:

# The law:

Section 48 of the Criminal Procedure Code Act provides that;

"The high Court may call for and examine the record of any criminal proceedings before any Magistrate's court for the purpose of satisfying 15 itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of the Magistrate's court."

Section 50 (1) (b) of the same Act provides as follows;

"In the case of any proceedings in a Magistrate's Court, the record of which 20 has been called for or which has been reported for orders, or which otherwise comes to its knowledge, when it appears that in those proceedings an error material to the merits of any case or involving a miscarriage of justice has occurred, the High Court may;

b) In the case of any other order other than an order of acquittal, alter or 25 reverse the order."

Section 17 (1) of the Judicature Act is to the effect that the High Court shall exercise general powers of supervision over the Magistrate's courts.

Having listened attentively to both submissions for and against the application, looked at all the authorities provided before me, the ruling of Her Worship and the 30 proceedings. It is my finding that there are two conflicting and competing interests over ownership of land in the instant case. A kibanjja holder and a registered owner pending before the High Court, Land Division.

Much as I agree that D. P. P can prefer charges against anyone as long as it is within the law, under Article 120 of the Constitution, evidence given and court 35 determines the matter.

Article 120 (4) and (5) of the Constitution provides for the functions of the Director of Public Prosecutions under Clause (3) of this Article.

(a) May, in the case of the functions under clause (3) (a) (b) and (c) of this Article be exercised by him or her in person or by officers authorized by 5 him in accordance with the general or specified instructions.

(5) In exercising his or her powers under this Article, the Director of Public Prosecutions shall have regard to the public interest, the interest of the administrator of justice, and the need to prevent abuse of the legal process.

Thus, the office of D. P. P and his/her representatives are required by this Article to 10 be mindful of cases that would appear to be abusing the legal process especially where the state criminalizes land disputes which are clearly civil matters.

It is true that both civil and criminal cases can proceed concurrently but depending on the circumstances of each case. However, each case must be determined on its own merit and characteristics. Allowing the criminal case to proceed however, in

15 this case which touches on issues of ownership rights would amount to an abuse of court process.

Section 209 of the Magistrates Court Act provides that;

"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 20 previously instituted suit or proceeding between the same parties, or 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."

- 25 The essential constituents of the above section are as follows; - a. That there are two concurrent suits or proceedings one of which is previous or filed earlier than the other before the same court or any other court vested with jurisdiction to hear the suit or proceeding. - b. The suit or proceeding is between the same parties or parties under whom 30 they claim or litigate. - c. The subject matter of the suit or proceedings are directly or substantially the same.

In the case of Joseph Agenda v. Uganda, HCT – 00 – CR – CM – 003 of 2011, it was held that;

"There is a clear distinction between civil and criminal actions. The civil proceedings determine the civil litigant's claims or liabilities and the 5 standard of proof is on the balance of probabilities. There is a public interest in the criminal proceedings and the required standard of proof is beyond reasonable doubt. The civil proceedings are individualistic in nature while the criminal proceedings are public in nature. Administrative policy therefore gives priority to the public interest in law enforcement."

10 I also associate myself with the holding in the case of Musumba Yahaya and Another v. Uganda, (Supra), where it was held as follows;

"I find that the determination of ownership rights of the suit land which are best resolved through a civil suit will have a direct bearing on the criminal suit. For if Musumba is found to own an interest in the suit land, 15 then this sale to Nakakawa would be valid, and the criminal proceedings then rendered moot. The reverse could also support the prosecution's case. Allowing the criminal proceedings to continue when there is a pending civil suit in the High Court to determine ownership rights will amount to an abuse of court process and can result into conflicting judgments. (See: 20 Sebulime Baker v. Uganda, Criminal Appeal No. 21 of 2018)."

I hereby stay the criminal proceedings until the determination of the Civil Suit based on my discussion and reasons above. I so order.

Right of appeal explained.

25 …………………………..

OYUKO ANTHONY OJOK JUDGE

30/11/2022

6