[2024] UGHCLD 249

## **THE REPUBLIC OF UGANDA**

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

## **(LAND DIVISION)**

### **MISCELLANEOUS APPEAL NO. 0065 OF 2024**

**(ARISING FROM MISCELLANEOUS APPLICATION NO. 1630 OF**

## **2O24)**

**(ARSTNG FROM CIVIL SUIT NO. 137 OF 2O24)**

**IMMACULATE NAKAWOOYA ::::::::::::::::::::::::::::::::: APPLICANT**

## **VERSUS**

- **1. OCITTI SAMUEL** - **2. SWABUR NARZUQ ABDUL** - **3. BAYIGA VANESA** - **4. ORGANIC EMPIRE UGANDA LTD:::::::::::::::: RESPONDENTS**

# **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA**

## **RULING.**

## *Introduction:*

1. This is an application by notice of motion brought under Sections 98 of the Civil Procedure Act, Order 50 rule 8 of the Civil Procedure Rules (CPR) for orders: -

- i) That the ruling of His Worship Kagoda Ntende Samuel delivered on the 9th day of August 2024 in Miscellaneous Application No. 1630 of 2024 seeking for the grant of temporary injunction to the Appellant be set aside. - ii) That the temporary injunction order that the appellant had applied for vide Misc. Application 1630 of 2024 be granted. - iii) Costs of this appeal be provided.

#### *Background;*

- 2. The appellant filed the main suit against the respondents seeking for various orders and the same appellant filed Misc. Application No.1378 of 2023 for a temporary injunction order against the respondents. The said temporary injunction order was heard and determined by the learned Assistant registrar Josephine Kabasinguzi Kayondo in favor of the appellant. - 3. Having been dissatisfied by the said ruling, the respondents herein appealed against the said decision before Justice Olive Kazarwe vide HCCA No.0147 of 2023, the said appeal was determined by the learned judge and she overturned the decision of the learned assistant registrar stating that it was the respondents who were in possession and use of the suit land.

4. Later on, the appellant through her new lawyers filed a temporary injunction application before the learned assistant registrar Kagoda Samuel vide HCMA No.1630 of 2024 against the same respondents where the respondents raised a point of law that the said temporary injunction application was barred by the law on res judicata and the learned assistant registrar determined the said application basing on the point of law and the application was dismissed, hence this appeal.

#### *Appellant's evidence;*

- 5. The appeal is supported by an affidavit deponed by Nakiryowa Esther a holder of powers of Attorney from the appellant which briefly states as follows; - i) That the appellant is the owner of the suit land comprised in Kakoola Village, Mutungo Central Cell, Mutungo Parish, Makindye Sabagabo, Wakiso distruct measuring 3.69 acres (1.492 hectares) and she has developments there on with banana, cassava, sweet potatoes and other trees. - ii) That the 1st respondent around 2021 started laying claims over the part of the suit land claiming to have bought the same from the appellant and he had denied him access.

- iii) The appellant filed a temporary injunction vide Misc. Appeal No. 1378 of 2023 and the same was granted against the respondents. - iv) That the respondents appealed against the said ruling and court set aside the temporary injunction order. - v) That upon setting aside the injunction order, the respondents on the 19th of day of June 2024 took a grader on the suit land and started grading the suit land as others were constructing a perimeter wall. - vi) That the appellants filed Misc. Application No.1630 of 2024 for a temporary injunction order and when the matter came up for hearing the respondents never submitted on the merits of the Application but instead, they raised a preliminary objection of res judicata stating that the facts in the temporary injunction order had been decided by court. - vii) That the learned registrar proceeded to determine the said application on preliminary objections and the same was dismissed by the registrar.

#### *Respondent's evidence;*

- 6. The application is responded to by an affidavit in reply deponed by the first respondent who is also a director at the 4th respondent and deponed the same on behalf of the 2nd and 3rd respondents which briefly states as follows; - i) That the 1st respondent only bought one acre of the disputed lad from the applicant and is only in possession of that particular one-acre piece of land not the entire 3.69 acres as alleged in the affidavit in support. - ii) The remaining 2.69 acres of the suit land which are the subject of the main suit are in possession of third parties who were conveniently left out of these proceedings by the applicant. - iii) That when court conducted a locus visit in Misc. Application No.1378 of 2023 it established that there was a caretaker who was residing on the one acre of the suit land which forms my interest. - iv) That the purpose of a temporary injunction is to maintain the status quo of the subject land and the status quo is that I am in possession of one acre on the suit land.

v) That the 1st respondent has been in possession and utilizing the one acre from the time he acquired the same from the applicant to date, the applicant on the other hand handed over vacant possession voluntarily to the applicant.

#### *In rejoinder;*

- 7. The applicant re-joined to the respondent's affidavit in reply as follows; - i) That the 1st respondent is not in possession of any portion of the suit land but the appellant is amenable to maintaining of the status quo as is for the entire suit land till determination of the head suit. - ii) That the allegations by the 1st respondent that he only owns one acre of the suit land are deliberate false hoods and tha when the learned deputy registrar visited locus and asked the LC1 chairperson to clarify on who let the caretaker be on the suit land, it was established that the appellant was the one who had allowed the caretaker on the suit land.

#### *Representation;*

8. The applicant was represented by Counsel Kiwewa Ismael of Luzige, Lubega, Kavuma & Co. Advocates whereas the respondents were represented by Counsel Peter Allan Musoke of M/S Musoke & Marzuq Advocates. Both parties proceeded by way of written submissions which this court is to rely on in the determination of this matter.

#### *Grounds for determination by court;*

*i) That the Assistant registrar erred in law and fact when he held that Misc. Application No.1630 of 2024 was barred by the doctrine of res judicata.*

#### *Resolution and determination of the grounds of appeal;*

- 9. Before proceeding with the merits of this appeal, counsel for the respondents raises preliminary points of law in his submissions which this court is to determine first. - 10. The first preliminary point of law is that the appellant is not entitled to file an affidavit in rejoinder in the instant application unless with leave of court and he relied on the decision in **Water and Environment Media Network (u)ltd and Ors vs National Environmental Management Authority Misc. Cause No.239 of 2020** before my learned brother Justice Musa Ssekaana held that applications as of this nature made under order 52 of the civil procedure rules, the law does not envisage the filling of an affidavit

in rejoinder to the application, therefore a party who intends to use additional affidavits must seek leave of court to file a supplementary affidavit in support of their application.

- 11. In reply, counsel for the appellant submitted order 8 rule 18 of the civil procedure rules provides that a plaintiff shall be entitled to file a reply within fifteen days after the defence or the last of the defences has been delivered to him or her, unless the time is extended. Counsel further states the decision cited by counsel for the respondents does not in any way allude that in applications of this nature affidavits in rejoinder are to be filed by leave of court and the same decision does not apply to the facts at hand. - 12. The main gist of this preliminary objection is that the appellant in the instant application is not entitled to file an affidavit in rejoinder as stated by counsel for the respondents in relying on the decision in **Water and Environment Media Network(u) ltd and Others vs NEMA(supra).** - 13. I will proceed to analyse and study the circumstances in the decision of **Water and Environment Media Network (u)ltd and ors vs National Environmental Management Authority** (supra) as it forms a strong pillar in the submissions of counsel for the

respondent, this was an application brought under articles 42,39 and 50 of the 1995 constitution of Uganda, section 33 and 36 of the judicature act(as was then) rules 3,4,6 and 7 of the judicature(judicial review) rules of 2009 and regulation 38 of the Environmental Impact Assessment regulations S. I No.153 for orders that;

- i) A declaration that the approval of the project brief/Environmental and Social Impact Statement and the issuing of the Certificate of Approval of Environmental and Social Impact Assessment (Certificate No. NEMA/ESIA 13709) by the National Environment Management Authority to the 2nd Respondent on 14th August 2020 for the *KYANGWALI MIXED LAND USE PROJECT*, was marred by flaws, procedural irregularities and without due recourse to the relevant provisions of the laws and regulations and thereby denying the interested parties including the Applicants a chance to effectively put forth their views aimed at protecting their rights to a clean and healthy environment. ii) An Order of Certiorari quashing the 2nd respondent's - certificate of approval of the Environmental Social Impact

Assessment issued by the 1st respondent on 14th day of August for the Kyangwali mixed land use project.

- iii) An Order of Prohibition stopping the Respondents and any other entity from implementing and acting on the said certificate of Approval. - 14. In arguing the said application, counsel for the respondents objected to the filing of affidavits in rejoinder by the applicant contending that they were filed and served out of time and it is incurably defective since it contained new evidence and they prayed that the same be struck out. - 15. In resolving the said objection, the learned judge had this to state, the general law on applications is *Order 52 of the Civil Procedure Rules* which provides; *Rule 3*; *Every notice of motion shall state in general terms the grounds of application, and, where any motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion. Rule 7: All applications by summons shall be in chambers and, if supported by affidavit, a copy of any affidavit or affidavits relied upon shall be attached to each copy of the summons directed to be served.*

- 16. In the instant application, there is no evidence led that the said affidavit in rejoinder was filed and served out of time neither that the said rejoinder contains new evidence. Had counsel for the respondents led evidence that the affidavit in rejoinder filed by the applicant was filed out of time or introduces new evidence then the same would be defective. - 17. I therefore find that the circumstances in the said decision do not apply to the instant case, therefore the first preliminary point of law is resolved in the negative and the same stands overruled. - 18. Proceeding to the second preliminary point of law where counsel for the respondents submits that the appeal was filed out of time since the decision by the learned registrar was delivered on the 9th of August 2024 and the instant appeal was filed on the 21st of August 2024 approximately 12 days from the date of the ruling. - 19. In responding to the said preliminary objection, counsel for the appellant submitted that order 50 rule 8 of the civil procedure rules provides that any person aggrieved with the decision of the registrar may appeal to the high court and section 79(i) of the civil procedure act provides for 7 days in which an appeal from the decision of the registrar may be lodged. Counsel relies on the

decision in **Birihariiwe Eryeaz vs Bright Tom Amooti CA 0042 of 2022.**

- 20. Counsel for the appellant further submits that the ruling by the learned Assistant Registrar was delivered on the 9th day of August 2024 and on the 16th of August 2024 the instant appeal was filed via The electronic case management system(ECCMIS) and by then it was within the 7days from the date of the ruling. - 21. In resolving and determining the said point of law, I state that the civil procedure act under section 79 states that **Limitation for appeals,** (1) Except as otherwise specifically provided in any other law, every appeal shall be entered— (a) within thirty days of the date of the decree or order of the court; or **(b) within seven days of the date of the order of a registrar, as the case may be, appealed against; but the appellate court may for good cause admit an appeal though the period of limitation prescribed by this section has elapsed**. (2) In computing the period of limitation prescribed by this section, the time taken by the court or the registrar in making a copy of the decree or order appealed against and of the proceedings upon which it is founded shall be excluded.

- 22. Upon visiting the Electronic Case management system, I established that the instant appeal was filed on the 16th of August 2024 and the ruling where the instant appeal emanates from was delivered by the learned Assistant registrar on the 9th day of August 2024 and the wording of the civil procedure act is that within 7 days of the date of the order by the registrar, the 7 days in the instant appeal started to run from the 9th of august 2024 till 15th of August 2024, meaning the instant appeal was filed one day out of the stipulated time. - 23. I will draw reference to the decision in **Visare Uganda Ltd vs Grant Thornton management ltd HCCA No.722 of 2021** by my learned brother Justice Stephen Mubiru, where counsel for the respondent submitted that the said appeal was incompetent for being filed out of time and short of section 79 of the civil procedure act since the ruling the appeal was seeking to overturn was delivered on the 6th of May 2021 and the appeal was filed on the 14th of May 2021 two days out of time without an application for enlargement of time. - 24. In resolving and determining the said preliminary objection, the learned Judge stated that *"According to section 79 (1) (b) of 15*

*The Civil Procedure Act, except as otherwise specifically provided in any other law, any person affected by an order or decision of a Registrar may appeal within seven (7) days of the date of the order, but the appellate court may for good cause admit an appeal though the period of limitation prescribed by this section has elapsed. The appeal in the instant case is from an order of the Registrar delivered on 6th May, 2021 issuing a warrant of attachment and sale of property comprised in LRV 2651 Folio 9 Plot 65A located along the Lugogo Bypass in Kampala. The appeal was filed on 14th May, 2021 one day out of time. Although there was no application made for enlargement of time, according to Order 51 rule 6 of The Civil Procedure Rules, where a limited time has been fixed for doing any act by order of the court, the court has power to enlarge the time upon such terms, if any, as the justice of the case may require, and the enlargement may be ordered although the application for it is not made until after the expiration of the time appointed or allowed. The rule envisages four scenarios in which extension of time for the doing of an act so authorized or*

*required, may be granted, namely; (a) before expiration of the limited time; (b) after expiration of the limited time; (c) before the act is done; (d) after the act is done. Proportionality is key to a proper application of these powers. While a step taken out of time is voidable, it may be validated by extension of time.*

- 25. Basing on the highlighted arguments, the learned Judge in his wisdom proceeded to validate the appeal that was filed one day out time. - 26. Further the supreme court of Uganda in **Godfrey Magezi and another v. Sudhir Rupaleria (2), S. C. Civil Application No. 10 of 2002 and Crane Finance Co. Ltd v. Makerere Properties Ltd, S. C. Civil Appeal No. 1 of 2001)** stated that An extension of time may be granted even where the step has been taken out of time and before the application for extension of time, time may be enlarged by validation of a belated step taken in the proceedings where it does not result in abridging, enlarging or modifying any substantive right. It will not have such an effect where it only facilitates the fair and accurate performance of the truth-finding

function of the court rather than providing a substantive basis on which to resolve the pending litigation.

- 27. The above authorities explain the fact that an extension of time may be granted even where the steps have been taken out of time and before the application for extension of time, the civil procedure act and rules cloth court with powers to enlarge time upon such terms as the justice of the case may require even without an application of extension of time being made. - 28. In the instant appeal where the appeal was filed a day out of the prescribed time, with reference to the provisions of the civil procedure act and rules as earlier stated and being guided by the wisdom of the supreme court and the decision of my learned brother Justice Stephen Mubiru, I am of the finding that the instant appeal filed one day out of time or the appellant's belated appeal is hereby by validated by this court hence the second point of law is resolved in the negative and the same is hereby overruled by this court. - 29. Counsel for the respondent raises two more points of law that are to the effect that the appeal and all the applications arising therefrom tantamount to abuse of court process and that the appellant has not come to court with clean hands.

- 30. I am of the view that the said preliminary points of law relate to the merits of the instant appeal and they would be best resolved and determined upon analysing the merits of the instant appeal. - 31. Proceeding to the merits of the appeal, the main ground upon which the instant appeal is based is that the Assistant Registrar erred in law and fact when he held that Misc. Application No.1630 of 2024 was barred by the doctrine of res judicata. - 32. Counsel for the appellant submitted that Misc. Application No. 1630 of 2024 seeking for fresh orders of temporary injunction was based on new facts and circumstances, further that interlocutory applications are not affected by the law on res judicata since they only seek interim reliefs and not final orders of court. - 33. Counsel for the appellant relies on the provisions of section 7 of the civil procedure act which states that *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.*

- 34. Counsel for the appellant's interpretation of the said provision is that the principle of res judicata affects matters that have been substantially determined and concluded between parties and the principle does not apply to interlocutory application being that interlocutory applications only grant interim relief and as such for as long as there is a pending suit, then rights of parties cannot be considered fully determined by court for as long as court has not rendered a final verdict in the head suit. Further counsel stated that under the doctrine of res judicata the facts of the case must be similar as to those which court made a decision. - 35. Counsel for the respondent stated that the basis and test of res judicata was laid down by the court of appeal in **Ponsiano Semakula vs Susa Magala and ors(1993)KALR 213** Where it was held that the doctrine of res-judicata embodies in section7 of the civil procedure act is a fundamental doctrine of all courts that there must be an end to litigation, justice requires that every matter should be once fairly tried and having been tried once, all

litigation about it should be concluded forever between the parties………."

36. Counsel for the respondent further relied on the decision in **Tropical Bank vs Zimwe(supra**) where the learned judge raised the conditions to be met under the doctrine of res judicata which are i) whether the subject matter in issue in the current suit was directly and substantially in a former suit ii) whether the parties in the current suit are either the same or litigating under the same parties in the former suit iii) whether the court which tried the first suit was competent to try the subsequent suit iv) whether the issue in the subsequent suit was finally decided by the court in the first suit. Counsel for the respondent proceeded to qualify all the stated conditions to the facts at hand.

#### *Analysis by court;*

37. The doctrine of res judicata as provided for under section 7 of the civil procedure act and in the supreme court case of **Karia and another v Attorney General and others [2005] 1 EA 83** where the court stated that the minimum requirements for the doctrine of res judicata are that (a) there has to be a former suit or issue decided by a competent court (b) the matter in dispute in the former suit must also be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar and (c) the parties in the former suit should be the same parties or parties under whom they or any of them claim, litigating under the same title.

- 38. To give effect to the plea of res judicata, the matter directly and substantially in issue must have been heard and finally disposed of in the former suit and there must have been a decision on the merits of the case*. (See; Lt David Kabarebe v Major Prossy Nalweyiso C. A Civil Appeal No.34 of 2003).* - 39. This court will therefore proceed to qualify the above stated requirements to the facts at hand; - a) There has to be a former suit or issue decided by a competent court. - 40. The appellant filed HCMA No.1378 of 2023 before the high court land division against the respondents seeking the following orders; - i) That a temporary injunction doth issue restraining the respondents and their agents from encroaching, disposing or alienating, transferring land totalling to 3.69 acres (1.492 hectares) at Kakoola village Mutungo parish Wakiso district

on Block 273 now styled Plot 25121 until the final determination of the main suit pending before court.

- ii) Costs of the application be provided for. - 41. The said application was determined on merit by the learned deputy registrar of the High Court (land division) who is vested with the jurisdiction to handle applications of such a nature. - 42. The appellant further filed another application before the learned Assistant registrar of the high court land division vide HCMA 1630 of 2024 against the respondents seeking for the following orders; - i) An order of Temporary injunction doth issue restraining the respondents, their agents, servants, employees, assignees or their transferees from grading, selling, alienating, excavating or creating any third party interest or any other dealings on the plaintiff's land located at Kakoola village, Mutungo Central Cell, Mutungo parish, Makindye Sabagabo, Wakiso District measuring 3.69 acres (1.492 hectares) (herein referred to as the "suit land") until determination of the main suit - ii) Costs of the application be provided for.

- 43. From the above-mentioned orders, it can be inferred that there existed a former application which involved an issue that was determined by a competent court and then the appellant proceeded to file another application with the same issue in question as it was in the previous matter and before the same court. - 44. Further the main issue in the two applications is an application for a temporary injunction against the respondents. - 45. I find that there existed matter in issue in a former application that was decided by a competent court. - b) the matter in dispute in the former suit between the parties must also be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar. - 46. Relating to the facts at hand, the former application between the parties was HCMA No.1378 of 2023 which was an application for a temporary injunction order against the respondents before the learned deputy registrar and the same application was determined by the said registrar as the per the merits of the application.

- 47. The application where the doctrine was pleaded as a bar is HCMA 1630 of 2024 which is an application for a temporary injunction order against the respondents filed by the appellant. - 48. The fact that the two applications were premised on the same prayer of a temporary injunction order is not disputed by both parties to the instant application. - 49. This court is of the finding that the matter in dispute in the former application was a temporary injunction order against the respondents, that's the same issue that was in dispute in the application where the doctrine was raised as a bar. - c) the parties in the former suit should be the same parties or parties under whom they or any of them claim, litigating under the same title. - 50. The facts at hand suggest that HCMA 1378 of 2023 which is the former application was between Immaculate Nakawooya as the applicant against Ocitti Samuel, Swabur Marzuq Abdul, Bayiga Vanessa and Organic Empire Uganda Ltd as the respondents whereas HCMA 1630 of 2024 was between Immaculate Nakawooya as the applicant and Ocitti Samuel, Swabur Marzuq Abdul, Bayiga Vanesa and organic Empire as the respondents.

- 51. The two applications are between the same parties and all claiming under the same interest or title, I therefore find that the above condition is qualified as well. - 52. In the result I find no reasons to interfere with the decision of the learned Assistant Registrar in HCMA 1630 of 2024 and the allegations that the said registrar erred in law and fact appear to be misplaced, therefore the instant appeal is hereby dismissed by this court with costs of the appeal to be in the main cause.

## **I SO ORDER.**

#### **NALUZZE AISHA BATALA**

#### **Ag. JUDGE**

#### **29 th/10/2024**

## **Delivered electronically via ECCMIS on the 29 th day of October 2024.**