[2025] UGHC 283

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLLDEN AT KIBOGA LAND CIVIL APPEAL NO.0038 0F 2024 (Arising from the Judgment and ruling of Hw Niyonzima Alex Magistrate Grade One in Civil Suit No. 046 OF 2018at Kiboga Court)

NYONYI INNOCENT:::::::::::::::::::::::::::::::::::: **VERSUS** TEOPISTA NAKAMYA ...................................

# BEFORE HON. MR JUSTICE KAREMANI JAMSON. K **IUDGMENT**

# **Introduction**

The appellant who was the plaintiff in the lower court in Civil Suit No.046 of 2018 was dissatisfied with the judgement and orders of the Magistrate Grade One delivered on 23^rd April 2024, at the Chief Magistrate's Court of Kiboga at Kiboga and brought this appeal seeking orders that the appeal be allowed and the dismissal order of the lower court be set aside

#### Background to the appeal

The appellant filed Civil Suit No. 046 of 2018 against the respondent in the Chief Magistrates Court of Kiboga seeking a declaration that the suit land situated at Kyeyitabya cell, Bukomero sub-county in Kiboga district belongs to the appellant, that a permanent injunction restraining the respondent from trespassing onto the suit land be issued, general damages for trespass and costs of the suit be awarded.

The appellant's case was that he was the owner of the suit land having purchased it from a one Juma Luwaga on $\frac{23}{7}$ . That he took possession of it and has enjoyed quiet possession of the same until 2017 when the defendant started to claim part of this land.

mam

$\mathbf{1}$

In her written statement of defence, the respondent denied the appellant's claims and averred that she is the rightful owner of the suit land having inherited it from her late mother in 1990 upon the mother's demise. That she has resided on the suit land from the time she was born. She raised a counterclaim against the appellant seeking orders that she is the lawful owner of the suit land and the appellant is a trespasser thereon having exceeded his known and ascertainable boundaries, sought an eviction order, a permanent injunction and costs of the counterclaim.

The trial Magistrate dismissed the appellant's suit for being res judicata basing on the ground that there was existing LCII Court decision dated 11^th May 2018. He upheld the counterclaim thus this appeal.

# Representation.

At the hearing of the appeal, the appellant was represented by Mr. Kazungu Apollo of $M/S$ Kazungu-Kakooza, Alinaitwe & Co. Advocates while the respondent was represented by Mr. Edward Ssemambo of M/S Human Rights Awareness and Promotion Forum.

Both counsel filed written submissions which I have considered in the determination of this appeal

The memorandum of appeal refers to judge to have been the one who decided the lower court matter. It refers to the learned judge to have erred yet the matter was handled by a Magistrate Grade One. This is taken to have been mistake and to be covered under Article 126 (2) (e) of the Constitution of Uganda 1995. $\frac{1}{2}$

I will therefore continue to handle the appeal while taking the reference to a judge to mean a magistrate grade one.

# Grounds of appeal

The Appellant raised four grounds of appeal in their memorandum of appeal namely:

1. The learned trial Magistrate erred in law and fact when he found that the LC2 Judgment had binding force whereas not.

Ja nam.

- 2. The learned trial Magistrate erred in law and fact when he dismissed the suit for being res judicata and maintained the counterclaim between the parties whose issues he already considered to have been competently determined by the LC2 Court. - 3. The learned trial Magistrate erred in law and fact when he declined to consider the merit of the case thereby occasioning a miscarriage of justice. - 4. The learned trial Magistrate erred in law and fact when he entertained a matter of res judicata that had been abandoned by the respondent/defendant herself.

### Duty of the court on appeal

The duty of a first appellate court is to scrutinize and re-evaluate the evidence on record and come to its own conclusion and to a fair decision upon the evidence that was adduced in a lower court. See: Section 80 of the Civil Procedure Act. This position has also been restated in a number of decided cases including Fredrick Zaabwe V Orient Bank Ltd CACA No. 4 of 2006; Kifamunte Henry V Uganda SC CR. Appeal No. 10 of 1997; and Baguma Fred V Uganda SC Crim. App. No. 7 of 2004. In the latter case, Oder, JSC stated thus:

"First, it is trite law that the duty of a first appellate court is to reconsider all material evidence that was before the trial court, and while making allowance for the fact that it has neither seen nor heard the witnesses, to come to its own conclusion on that evidence. Secondly, in so doing it must consider the evidence on any issue in its totality and not any piece in isolation. It is only through such reevaluation that it can reach its own conclusion, as distinct from merely endorsing the conclusion of the trial court".

Consideration of the grounds of appeal.

I will consider all the grounds in this appeal together since they all relate to the suit having been dismissed for being res judicata by the trial magistrate.

June 2000

#### Submissions

In his submissions the learned counsel for the appellant submitted that the Local Council two handled the matter as court of first instance and yet it had started from Local Council one making the proceedings a nullity.

He further submitted that the local council two lacked quorum as there were only four members present instead of five. And that the four members were only men.

In his reply the learned counsel for the respondent stated that the matter was first reported to Local Council one before it was referred to Local Council two. That local council two exercised jurisdiction after local council two and it hence had jurisdiction.

He further submitted that the court had quorum. That the court falls under the sub-county court which require a minimum of three members one of them being a woman. That four members were present who are more than the required three members.

The learned counsel submitted that the absence of a woman is a mere technicality that can be cured under Article 126 (2) (e) of the constitution of Uganda.

On the issue of allowing the counterclaim he submitted that there was no wrong with the decision.

#### Analysis of court.

The suit in the lower court was dismissed for being res judicata. At that stage five plaintiff's witnesses and three defence witnesses had been heard. The trial magistrate visited locus and fixed the matter for judgment.

Despite hearing of the case on its merits to its conclusion and fixing the same for judgment. the learned trial Magistrate on page 3 of the judgment restrained himself from delying into the merits of the case stating that there was an existing and valid Local Council two decision dated $11$ ^th Mav. 2018.

Upon perusal of the record it is evident that upon conclusion of the hearing of the appellant's case, counsel for the respondent raised a preliminary objection to the effect that the suit was res judicata as the same was heard and determined by the Local council two Court of Mweza Parish.

/ man

Before the ruling on the preliminary objection could be delivered, counsel for the respondent informed court that she wished to withdraw the said preliminary objection and prayed that the suit proceeds on its merits. The matter proceeded on its merits.

It is in the final judgment that the trial magistrate chose to ignore the prayers of parties and brought back the issue of res judicata concluding that the matter was barred for being res judicata.

The Jurisdiction of Local Council Courts is established by the Local Council Court's Act and Regulations made thereunder which provide for the procedure of hearing cases by Local Council Courts.

In the instant case, the trial Magistrate not only decided to resolve and determine a preliminary objection that had been abandoned by the party that raised it, but he also upheld the said Local Council Two Judgment that was not tendered in court or parties allowed to lead evidence on its validity or existence. There were no submissions made on the same point of law by either party.

Section 7 of the Civil Procedure Act establishes the principle of res judicata. It provides that no court should 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 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 heard and finally decided by that court. See also: Lt David Kabarebe V Major Prossy Nalweyiso CACA No. 34 of 2003.

In the case of Posianio Semakula v Susane Magala and others [1993] KALR 213 the doctrine of res judicata was explained as follows-:

*The doctrine of res judicata embodied in Section 7 of the Civil Procedure Act is a fundamental doctrine* of all courts that there must be an end to litigation. The spirit of the doctrine succinctly expressed in the *well-known maxim nemo debt bis vexari pro una et eada causa'* (no one should be vexed twice for the same cause)

$\sim$ Mam

In the case of Onzoia Elizabeth v Shaban Fadul Civil Appeal No.019 of 2013 at Arua (unreported) it was held that the test of whether or not a suit is barred by res judicata appears to be that the plaintiff in 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 which he has already put before court of competent jurisdiction in earlier proceedings and which has been adjudicated upon.

$\mathbf{S}$

It follows therefore that for a court to conclude that a matter is res judicata, it must have passed the above criteria.

The trial Magistrate in his judgment did not subject the said LCII Court decision to the criteria set out above to establish whether the suit was res judicata or not. He simply stated that he had an opportunity to peruse the LCII court judgment and found that the court had reached a decision that the suit kibanja belonged to the defendant.

In my view such a conclusion required looking at the judgment and the proceedings in the Local Council 2 Court in issue. This was not done and hence the conclusion was irregular.

Upon finding that the matter was res judicate the trial magistrate went ahead to allow the counterclaim. He did not justify the decision of allowing the counterclaim.

A counterclaim is a suit of its own. Dismissal of the main suit requires hearing of the counterclaim on its merit if not dismissed and delivering of a judgment on it.

I therefore agree with the learned counsel for the appellant that having found that the suit was res judicata, it was wrong for the trial magistrate to uphold the respondent's counterclaim without any hearing.

I would also like to observe that upon concluding that the matter was res judicata, the trial magistrate entered judgment. A judgment is the final decision made by a court or tribunal after considering the relevant evidence. The trial court did not analyze the evidence adduced but summarily dismissed the suit. The trial magistrate ought to have made a ruling instead of entering a judgment as he did.

Based on the above analysis all the grounds of appeal succeed.

$-$ mam

In the final result, $\rm I$ find that the appeal has merit and it is accordingly allowed. The orders made by the lower court are hereby set aside. I grant an order reinstating Civil Suit No.046 of 2018 which shall be tried on its merits by the lower court. The costs of this appeal and the lower court shall abide the outcome of the re-trial.

I so order.

Mam $\overline{D}$

KAREMANI JAMSON. K JUDGE. $12/5/2025$