Nkalubo v Uganda (Miscellaneous Application No. 27 of 2020) [2021] UGHCCRD 42 (18 March 2021)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

**(CRIMINAL DIVISION)**

## **MISCELLANEOUS APPLICATION NO. 27 OF 2020**

## **(ARISING OUT OF NAKAWAS CRIMINAL CASE NO. 495 OF 2019)**

**NKALUBO AUGUSTINE APPLICANT**

#### **VERSUS**

**UGANDA RESPONDENT**

BEFORE HON JUSTICE TADEO ASIIMWE

#### **RULLING**

This Application was brought by way of Notice of Motion under Section 17 of the Judicature Act, section 48 and 50 ofthe Criminal Procedure Code Act and rule 2 of the judicature (criminal procedure Act cap 13.

The Applicant seeks to move this Honorable Court to call for and examine the record of proceedings in Nakawa Criminal Case No 295 of 2019 pending before the Chief Magistrates court Nakawa for purposes of examining the propriety, legality and correctness of the entire proceedings and the order of the magistrate declining to entertain an application for stay of a criminal matter pending the determination of civil suit no 298 of 2017 formerly Nakawa HCCS NO. 180 OF 210 at family court.

The application is supported by the affidavit of MR. Nkalubo Augustine the accused in criminal case No. 295 of 2019 and plaintiffin HCCS no. 298 of 2017.

The gist ofthe affidavit in support is that the applicant's mother inherited properties of her father Yowana Kiwanuka as a sole beneficiary and registered them in her names as an administrator ofthe estate ofYowana kiwanuka Ssewanyana. That upon her demise the applicant was bequeathed those properties and obtained letters of administration in the estate of his late mother vide A. C NO 72 of 2002 That he eventually obtained letters of administration in the estate of his grandfather yowana kwanuka SSewanyana vide A. C no. 66 of 2010 to enable him effect the necessary transfers. That in 2010 when he went to register himself on tittle, he discovered that Sewanyana Francis and Ssewanyana Edward had obtained the same letters of administration over the estate vide AC NO. 65 OF 2009. That the applicant filled HCCS NO 298 of 2017 formerly Nakawa CS no. 180 of 2010 for cancellation of letters of administration. That in 2019 when the civil matter was set for hearing, the defendants in the civil suit caused his arrest and charged him for forgery ofjudicial document to wit letters of administration. That the applicant's lawyer applied to court to have the proceedings stayed pending the conclusion of the civil matter and that prayer was declined which would lead to abuse of court process. That the applicant was denied a chance to recall a key witness.

At hearing the Learned State Attorney Njuki Mariam represented the Applicant while Counsel Derrick Lutalo represented the Accused/ Respondent. The applicant's Counsel filed written submissions and made highlights in clarification while the learned state attorney made an oral reply.

In his submission, the applicants counsel in support of the grounds in the motion Argued that the criminal trial against the applicant at Nakawa Court is an abuse of court process aimed at strangling the ongoing high court matters and render them useless. That ifthe criminal trial proceeds, it will occasion the miscarriage ofjustice to the applicant since it is based on letters of administration which have never been challenged or cancelled by the high court. That courts failure to stay criminal proceedings against the applicant in the criminal matter was grossly irregular and caused material injustice and might cause conflicting judgements. He invited court to consider the case of Sebulime Baker v Uganda (High Court Criminal Appeal-2018/21).and avoid criminalizing civil matters.

In reply, the learned state Attorney submitted that there were no irregularities being committed in the criminal matter and agreed with the chiefmagistrate conduct ofthe

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trial in the criminal matter case no 495/2019. she prayed that court dismisses this application.

#### **RESOLUTION**

From the submissions of both counsel and the pleadings on record, the main issue for courts to determination is whether it was improper or illegal for the magistrate to continue criminal proceedings when there is a pending civil matter between same parties and same subject matter.

Before I consider the merits of this application, I wish to consider the law under which the application is brought.

**Section 50 (2) of the Criminal Procedure Act** provides for the power ofthe High Court on Revision and is to the effect that no order under this Section shall be made unless the DPP has had an opportunity of being heard and no order shall be made to the prejudice of an accused person unless he or she has had an opportunity of being heard either personally or by an advocate in his or her defense.

**Section 48 of the Criminal Procedure Code Act** further provides that, the High Court may call for and examine the record of any criminal proceedings before any Magistrates' Court for the purpose of satisfying 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 ofthe Magistrates court.

**Section 17(1) of the Judicature Act** is to the effect that the High Court exercises general powers ofsupervision over the magistrates' courts'.

2. With regard to its own procedures and those ofthe Magistrates' Court, the High Court shall exercise its inherent powers-

(a) to prevent abuse of process of the Court by curtailing delays of judgment including the power to limit and discontinue delayed prosecutions.

(b) to make orders for expeditious trial and

(c) to ensure that substantive justice shall be administered without undue regard to technicalities.

The above provision ofthe law illustrates that the inherent powers ofthe High Court are intended to curtail delays, to ensure expeditious trial and to ensure that technicalities are not used to defeat substantive justice. The High Court aJfco has

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unlimited original jurisdiction over all matters to revise the lower court decision and restate the correct position ofthe law above.

In view of the above provisions of the law, perusal of the record reveals that the applicant is a holder of letters od administration to the estate of the late Anna Namisango vide A. C no 72 of 2002 and letters of administration to the estate ofthe late Yowana Kiwanuka ssewanyana vide A. C no. 66 of 2010. The applicant instituted civil suit number HCCS NO 298 of 2017 formerly Nakawa CS no. 180 of 2010 for cancellation of letters of administration granted to the defendants over the estate of a one Yowana Kiwanuka ssewanyana vide A. C no. 654 Of 2009 for being obtained by fraud since the applicant had obtained a grant over the same estate.

That while the civil suit was still pending the family court, the defendants in the civil suit above instituted criminal proceeding against the applicant for uttering a false judicial document to wit letters of administration to the estate of the late Kiwanuka Ssewanyana purportedly issued on the 2nd ofJune 2010 vide A. C, no. 66 of 2020.

Although this court is cognizant ofthe fact that "there is no universal principle that proceedings in a criminal case must necessarily be stayed when a similar or identical matter is pending before a civil court" I am aware ofthe common law principle that criminal matters should take precedence over civil matters.

The common law position is persuasive and this court is not bound to follow it mandatorily especially where strict adherence such a principle could occasion a miscarriage ofjustice.

In the present case, the criminal proceedings against the applicant in criminal case no. 295 of 019 at Nakawa arise out letters of administration over the estate of the late Yowana Kiwanuka ssewanyana vide A. C no. 66 of 2010. And A. C no. 654 Of 2009 both of which are a subject of HCCS NO 298 of 2017 formerly Nakawa CS no. 180 of 2010.

The criminal and civil cases involve the same persons and arise from the same facts and allegations. The authencity of documents where both cases are premised are a subject of trial by the family court which will determine which of the grants was validly issued by court. Before that determination is made, it remains in doubt as to which offthe grants is a valid one in order to determine who ofthe parties faces the criminal trial.

Court in **Sebulime Baker v Uganda (High Court Criminal Appeal-2018/21) stated** *that It is also trite law that "where a civil court has taken cognizancefhnd is*

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*deciding the same issue, the criminal proceedings before the trial court amount to abuse of process of law. Proceedings pending before the trial court in such circumstances ought to be stayed till the disposal ofthe civilsuit(s)*

I agree with above position and wish to add that Staying the proceedings before the trial court does not mean that the proceedings are necessarily illegal and it does not in any way interfere with the power ofthe Director ofPublic Prosecutions to institute criminal proceedings. Criminal proceedings have no limitation and DPP can institute them any time.

The role ofthis court is to avoid miscarriage ofjustice criminalizing land disputes (civil disputes in this case), abuse ofcourt process and perverts the course ofjustice". - Refer to Okello Oris Atana & Another vs. Uganda Cr. App 0035/2013.

As earlier stated I am convinced that the questions to be answered in the criminal matter are entirely dependent on the authenticity ofthe letters of administration and can be best answered by the issuing authority which is the high court / family Division before whom a similar civil matter with the same question is pending.

It is my opinion that once a civil matter and criminal matter bearing the same questions of law are pending before different courts, the criminal matte must be stayed even if it were filled before the civil matter.

The rationale here in is to avoid abuse of court process and conflicting judgements bearing in mind that criminal proceedings have no time limitations.

In conclusion I find merit in this application and the same is here by granted with an order directing stay of proceedings against the applicant in Criminal case no. 295 of 2019 pending the determination of HCCS NO. 298 of 2017 formerly Nakawa CS no. 180 of 2010. <sup>a</sup>

TADEO ASIIMWE JUDGE 18/03/2021 -—HO/ Vrt