[2025] UGHC 495

## **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT LUWERO**

#### **HCT-17-LD-CS-0289-2022**

#### **FORMERLY LAND DIVISION CIVIL SUIT NO. 2593 OF 2015**

## **LUBEGA PHOEBE (ADMINISTRATOR OF THE ESTATE OF LATE KITAGENDA GRACE SAMULA)…………………………PLAINTIFF**

**V**

#### **1. DEBORAH NANTUME**

# **2. COMMISSIONER LAND REGISTRATION…………DEFENDANTS BEFORE LADY JUSTICE HENRIETTA WOLAYO RULING ON WHETHER THE SUIT IS RES JUDICATA**

#### Introduction

1. When counsel for the first defendant Twijukye Samuel together with the defendant and counsel for the plaintiff Nsereko Shamim appeared before me on 22.8.2024, counsel Shamim indicated to me that she had filed an application for a temporary injunction. At this juncture, having studied the file, I required both counsel to address me on whether this suit was not res judicata. Counsel for the first defendant submitted orally that the suit is not res judicata because the subject matter this time round was registered land while in the lower court, it was unregistered land. After this brief submission from counsel for the defendant, I required both counsel to file written submissions and I gave them a schedule for the same. Counsel for the first defendant was required to file submissions by 19.9.2024 while counsel for the plaintiff was required to file by 10.10.2024 and rejoinder by 24.10.2024. While counsel for the plaintiff filed submissions by 22.10.2024, the defendant has not filed her submissions as I write this Ruling.

#### Background facts

2. The plaintiff Lubega Phoebe filed a plaint in 2015 initially in the High Court at Nakawa. She then filed an amended plaint on 20.5.2019 in her capacity as an administratrix of the estate of late Kitagenda Grace Samula for cancellation of the defendant's certificate of title to Buruli Block 147 Plot 183 land at Nakasongola and an order directing to transfer the same into the names of the Matovu Peter Bakule; Nakabiito Phoebe and Nabukeera Irene children of late Kitagenda Grace Samula, among other orders.

- 3. The plaintiff based her cause of action in a judgment of HW Esta Nambayo as she then was in **Nakasongola Chief Magistrate's Civil Suit No. 006 of 2002 Samali Lubega V Abel Lubega**. From a reading of the judgment, the two parties were a couple and they had a son Kitagenda Grace Lubega who died in 1990 leaving behind orphans on whose behalf, Samali Lubega sued her own husband Abel Lubega. - 4. It was established by Her Worship Nambayo that prior to the death of Kitagenda, his father Abel Lubega had sold a plot to one Musisi which Grace Kitagenda redeemed from the said Musisi. When Kitagenda died, Lubega Abel retook the land and gave it to his second wife who happens to be Nantume Deborah, the current defendant. This means that even in the lower court, Deborah Nantume was party to the dispute between Samali Lubega and Abel Lubega except that she was not formally joined as a party. The evidence presented to the lower court included a letter written by Abel Lubega to the Administrator General on 25.4.1996 in which Lubega Abel confirms that the plot of land measuring 50 feet by 100 feet belonged to Kitagenda's orphans. The learned chief magistrate as she then was visited the locus in Nakasongola town and confirmed that the piece of land was the same Lubega Abel had made reference to in his letter to the Administrator General in which he confirming that it belonged to Kitagenda Grace his son. - 5. The learned chief magistrate as she then was also found that Kitagenda gave his late father Lubega 40,000/ to redeem the land he had sold to Musisi and then Lubega gave the land to Kitagenda. - 6. The current defendant Nantume Deborah testified as a witness in the lower court and she claimed she had bought the plot from Lubega Abel in 1994 and that it measured 50 feet by 120 feet which evidence the lower court rejected because the

court had visited the locus and ascertained it is 50feet by 100 feet and the same plot in dispute. The lower court also rejected the alleged sale agreement as an attempt to defeat justice.

- 7. The lower court entered judgment for Samali Lubega mother of Kitagenda in the following terms: - a) The disputed plot belongs to the orphans of the deceased grace Kitagenda. The plaintiff and widows of the deceased have a duty to look after and use the plot for the benefit of the orphans of the deceased until the orphans become of age and take over the plot themselves. - b) The defendant and Deborah and or their agents are hereby ordered to vacate the plot for the orphans immediately. - c) The defendant shall pay general damages of 100,000/ and costs of the suit to the plaintiff. - 8. It is this same plot of land that Lubega transferred to Deborah Nantume on 11.10.2002 having been registered the same day of 11.10.2002 in the names of Lubega Abel as Buruli Block 147 Plot 183 measuring 0.055 hectares which is 0.13 acres the equivalent of 50 feet by 100 feet. - 9. From paragraph 5(d) of the amended plaint, it is suggested that the land was registered the same day 11.10.2002 when the lower court delivered its judgment in favour of Samali Lubega and decreed the land to belong to the orphans of Kitaganda Grace. The information about the judgement being delivered on 11.10.2002 is not verified because the lower court judgment has no date. Moreover, if the case was registered in 2002, I am not certain judgment could have been delivered the same year of registration. In any case, whether the land was registered on the date the lower court judgment was delivered or during the pendency of the lower court suit or after the delivery of judgment is irrelevant


because the fact remains it is the same piece of land that was in dispute and now it is in dispute in the High Court after it had been litigated and judgment pronounced.

- 10. In her written statement of defense in the current suit, the defendant Nantume Deborah averred that the current plaintiff Samali Lubega sued the late Abel Lubega and not herself and that the lower court judgment was directed at Lubega Abel and not herself. The second defendant Commissioner Land Registration did not file a defense hence reference to the defendant in this judgment means Deborah Nantume, the first defendant only. - 11. I note that **High Court Civil Appeal No. 0008 of 2003 between Abel Lubega and Samali Lubega** was dismissed on 27.5.2014 in an order signed by Deputy Registrar Otto Michael Gulamali as he then was. This means the authoritative judgment as between the couple is that of the chief magistrate Esta Nambayo as she then was.

## **Whether HCT-17. LD-CS-0289-2022 Lubega Phoebe v Nantume Deborah is barred by res judicata.**

12. It is evident from the foregoing narrative that the critical facts of the case are not in dispute, namely that the subject matter of the current suit is the land that was previously in dispute between the parents of Kitagenda in Nakasongola chief magistrate's Court Civil Suit No 6 of 2002. Furthermore, the same land is in dispute in the current suit between Lubega Phoebe the current administrator of the estate of Kitagenda Grace and Nantume Deborah second wife of Abel Lubega, Kitagenda's late father. The only difference is the land was previously not registered and now it is registered land under the title of Lubega Abel then Nantume the same people involved in the previous dispute. Evidently, the current suit was brought in total disregard and in contempt of a judgment of a competent court.

13. Without a doubt, the judgment authoritatively pronounced itself on the rightful owner of the suit land as the estate of late Grace Kitagenda who was survived by three children named in the plaint as: Matovu Peter Bakule; Nakabiito Phoebe and Nabukeera Irene children of late Kitagenda Grace Samula. In the lower court Samali litigated on her dead son's behalf with Abel Lubega from whom Deborah Nantume now derives title. The import of these facts is that the dispute was previously litigated by the predecessors in title of the plaintiff and the defendant respectively. I reproduce **Section 7 of the Civil Procedure Act Cap 71** which enacts the common law principle of res judicata:

> *"No court shall try any suit or issue in which the matter directly and substantially in issue has been 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 same title, in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised, and has been heard and finally decided by that court."*

14. The test for the application of the principle of res judicata was articulated in **Ponsiano Semakula v Suzane Magala and others (1993) KALR 213** as follows:

> *'The test whether or not a suit is barred by res judicata appears to be that the plaintiff is the second suit is trying to bring before the court in another way and in the form of a new cause of action a transaction that has already been put before a court of competent jurisdiction in earlier proceedings and has already been adjudicated upon.'*

15. In light of the foregoing clear legal provision and case law, I find that **HCT-17-LD-CS- 0289 of 2022** is barred by res judicata. I further make a finding that the Law Firm of Nambirige & Co. Advocates has exhibited gross professional negligence in bringing this suit instead of seeking consequential orders. For ten years, the case has been pending in the High Court since 2015 when it was filed. Before that,


it was in the chief magistrate's court from 2000 to 2002. This means, the family has been at each other's throats for nearly 25 years and the real victims in this case are the orphans who are the legitimate rightful owners of the suit land.

16. It was not lost on me that Nambirige & Co. Advocates for the plaintiff filed written submissions in which they defended the suit arguing that it was not res judicata while the defendant's lawyer counsel Twijukye in his oral submissions rejected the notion that the suit was res judicata and wanted the case to be heard. If this is not collusion between lawyers to defeat justice, then I do not know what else to call it.

## Costs

- 17. Having found that the plaintiff's lawyers exhibited gross professional negligence for needlessly pursuing a suit against the defendant instead of seeking consequential orders from the High Court, the lawyers Nambirige & Co. Advocates who have represented the plaintiff since 2015 when they filed the suit, shall refund fees and disbursements the plaintiff has incurred since then. - 18. Although ordinarily, the defendant would have got costs, she is denied costs for the reason that she cannot benefit from her own wrong passed on by her predecessor in title and in collusion with him. In the premises, this suit is struck out for being res judicata. In order to conclusively determine it, I will make consequential orders under **Section 33 of the Judicature Act Cap. 16 as follows:**

## Orders

a) Buruli Block 147 Plot 183 land at Nakasongola is decreed to the children of late Grace Samula Kitagenda, namely, Matovu Peter Bakule; Nakabiito Phoebe and Nabukeera.

- b) The Registrar of Titles shall cancel the registration of Deborah Nantume on the said certificate of title for Buruli Block 147 Plot 183 land at Nakasongola and register the three children of Kitegenda as registered proprietors on receipt of this order. These are: **Matovu Peter Bakule; Nakabiito Phoebe and Nabukeera**. - c) The defendant Nantume Deborah will voluntarily deliver vacant possession to the children of the late Kitagenda Samula Grace within 30 days of this judgment. In default, an eviction order shall issue in accordance with the Land Evictions Practice Directions 2021. - d) A permanent injunction shall issue restraining the defendant Nantume Deborah from making any further claims to the land which has been decreed to the children of late Kitagenda Samula Grace and from interfering with their quiet possession. - e) Nambirige & Co. Advocates who have represented the plaintiff since 2015 shall refund taxed fees and disbursements the plaintiff has incurred since 2015 when this suit was filed. - f) The defendant Nantume Deborah will bear her own costs of the suit.

## **DELIVERED VIA ECCMIS THIS 27TH DAY OF MAY 2025.**

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## **LADY JUSTICE HENRIETTA WOLAYO**

Legal representation Nambirige&Co. advocates for the plaintiff Ausi Twijukye & Co. Advocates