Namayaza v Bajenja (Civil Appeal 12 of 1998) [2000] UGHC 38 (24 March 2000)

Full Case Text

## THE REPUBLIC 0? UGAHDA

*W* \*

IN THE HIGH COURT OF UGANDA AT FORT PORTAL CIVIL APPEAL NO. DR. MFP U OF 1998 (Arising from C. S. No. MFP 14/98) 1 , HABIBU NANAYAZA alias ESERI N. KIRONDE } 2. HABIBU NAMAYAZA KIRONDE alias ESERI N. J APPELLANT KIRONDE (Administrator of the Estate of} the late YOSAMU TABULA KIRONDE 5 = VERSUS =

YOSAMU BAJENJA RESPONDENT BEFORE: THE HONOURABLE MR, JUSTICE ELDAD MWANGUSYA

## JUDGMENT

This is an appeal against the ruling and decision of the Chief Magistrate, Fort Portal delivered on the 29th day of November 1998 where it was ordered that the appellant's Suit against the respondent was res judicata and was struck off with costs.

The background to this appeal was that the appellant who was the original Plaintiff brought an action against the respondent who was the original defendant for general damages, mesne profits, eviction order, interest and costs. The action was in respect of a Plot of Land in Fort Portal Municipality that has been a subject of various litigations. The appellant now claims it as her own having got it from the Controlling Authority, the Toro Kingdom. The respondent has been a tenant An the Land for a long period of time. At the Commencement of the trial the respondent's Counsel objected to the trial of the case pleading that the Suit was res judicata. The trial Chief Magistrate upheld the objection and struck off the Suit with costs \* Hence this appeal.

Originally Counsel for the appellant filed a memorandum of appeal containing the following grounds

(1) That the trial Chief Magistrate erred Law and fact when held that the proceedings in Civil Suit No. 117 of 1995, Civil Appeal No. 10 of 1965, Civil Suit No. 3 of 1968 and Civil Suit No. J18 of 1964 applied to the Suit herein rendering it resjudicata.

(2) That the trial Chief Magistrate erred in Law and in fact when he did not consider the fact that the Plaintiff/Appellant had an independent

Cause of action different from the one of Yosamu Tabula Kironde, as the first Plaintiff,

(5) That the trial Chief Magistrate erred when he'failed to call the previous discussion Court files to ascertain himself whether or not the case was resjudicata..

(4) That the whole decision caused a miscourage of justice.

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held that the case was resjudicata. (5) That the trial Chief Magistrate erred in Law and in fact when he

At the hearing of this appeal Mr. Kituma Magala Counsel for the appellant stated that he was abandoning grounds 3, 4 and 5 of the memorandum of Appeal and arguing grounds 1 and 2 together. The gist of Mr. Kituma Magala's argument was that the doctrine of res judicata was not applicable in this Case because the appellant who' had never been a party to any of the previous proceedings had an independent action in the Civil Suit Mo. in issue. On the other hand Mr. Musana Counsel for the respondent who had raised the issue of res judicata at the original trial maintained that the parties in this case as in the previous one were the same and fall clearly under the provisions of S.7 of the Civil Procedure Act. He further stated that the subject matter has always been the same and that there was no fresh cause of action to constitute a fresh Suit.

So in my judgment the only issue for me to determine is as to whether or not the doctrine of res judicata is applicable in this case and whether or not the case was rightly struck off by the trial Chief Magistrate.

The doctrine of res judicata is laid down by S.7 of the Civil Procedure Act which provides as follows:-

" No Court shall try any Suit or issue in which the matter directly and substantially in issue in a former Suit between the same parties, or between parties under whom they or any of them claim, litigating under the &ame title, in a Court competent to try such subsequent Suit in which such issue has been subsequently raised, and has been heard and finally by such Court.1'

This doctrine bars litigation in cases where the same parties or those claiming under them are involved so that a litigant does not re-open an

../I

issue which has been adjudicated upon by a court of competent jurisdiction. Applying this, principle The Honourable Lady Justice C. K. Byamugisha in Civil Suit No. 117 of 1995 found as follows

tt Omukama of Toro in the writ dated 7th May 1955\* (1) That the Land in dispute was given to Charles Kavuma by the

**V**

(2) That Charles Kavuma and Yosamu Kironde fought a Court battle over the samepiece of Land which ended in former's favour.

(?) Charles Kavuma erected Aryan Singh as is evidenced by an agreement dated the 1st September 1965. a Workshop which he rented to an Asian

(4) Since the dispute between Kironde and Kavuma was adjudicated upon by a Court of competent jurisdiction and no appeal was preferred against that decision to that extent Kironde's Successor's have no proprietory interest to protect on their own'or on behalf of other people, Bajenja and his wife who brought these proceedings can pay rent to the estate of the Late Charles Kavuma 11

The above was the position of this case when the appellant filed her Suit. It seems to have put to rest tne protracted struggle between the Kavumas and the Kirondes. The Bajenjas who were tenants on the disputed land had been caught up in the struggle and still are by virtue of their interest in the land as tenants.. The appellant is one of the Kirondes and claims an interest nn the Land as Administrix of the Estate of the Late Yosamu Tabula Kironde which I am afraid she cannot do in view of the holding by Her . Lordship Lady Justice Byamugislia quoted above. However, the issue that needs to be resolved is whether the sees doctrine of res judicata is ' ... OVA XftA 13 applicable to the plaintiff when she sues in her own capacity as an allocates follows of the Land from the Ornukama of Toro. Paragraph 9 of her plaint states as

Block 72 Plot No. 1) was and is registered in the names of the Omukama of Toro which Land commission, in 1972 Under the Administration in the Controlling Authority until the coming into effect of the Cultural and Traditional Leaders (Return of Properties) Statute of 1995 and that with the coming into force of the said Statute the 1st Plaintiff and Polly " The Land is comprised in Freehold Register Volume 16 Folio 10 (now

Nanteza ceased to be a leasee of the Fort Portal Municipal! Council 1)0031116 a leasee on the Land of the Omukama of Toro."

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**V**

The issue that arises out of this paragraph is as to whether or not the Status of the Lana in question has changed and whether or not from the changed Status the Plaintiff derives some interest in the Land from which she can sue in her own capacity. From this trial the interest of the Kavuma in the Land and that of the Bajenja as tenants on the land will be determined. That is only possible if this case is tried.

issues raised and I will allow this appeal and Order for case. The costs in this appeal shall be in the cause. I therefore hold that the Suit is not res judicata because of those a^Wof the

Sgd. ( ELD. <■ n? Sgd.( ELMDja&SGUSYA T J|/u D G B

24. 3. 2000.

28/3/2000: Mr. Mugabi Enoth of Kitumba, Magala *&* Co. Advocates for the appellant. Mr. husana for the respondent. Both parties are in Court.

Court: The trial Judge had directed me to deliver judgment in this case. It is accordingly delivered in Chambers at 10. JO a.m.

Sgd. ( P. I?'. ONYER )

DEPUTY REGISTRAR.

## 28/3/2000.