[2005] UGCA 95

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA **AT KAMPALA**

#### HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA. CORAM: $5$ HON. JUSTICE C. N. B. KITUMBA, JA. HON. JUSTICE S. B. K. KAVUMA, JA.

#### CIVIL APPEAL NO. 98 OF 2003

$10$

$20$

## F. W. SEMBATYA :::::::::::::::::::::::::::::::::::

#### **VERSUS**

| | 15 1. NANDAULA HARRIET | | |--|------------------------|------------------------------------| | | 2. KAYONDO | <b>::::::::::::::: RESPONDENTS</b> | | | 3. PATRICK BUYONDO | |

[Appeal from the ruling of the High Court sitting at Kampala (Lugayizi, J.) dated 13/3/2002 in HCCS No. 918 of 2000]

## **JUDGEMENT OF C. N. B. KITUMBA, JA**

This is an appeal against the ruling of Hon. Mr. Justice Lugayizi, J. in which he upheld the preliminary objection, which was raised by counsel $25$ for the respondent/defendant that HCCS No. 918 of 2000 was res judicata. The learned judge held that the matter had already been determined by the Local Council Court. Consequently, he rejected the suit and struck it out with costs under Order 7 Rule 11(d) of the Civil

Procedure Rules. 30

> The following is the background to this appeal. The appellant sued the three respondents for trespass. According to his plaint he averred that he bought the kibanja on Block 115 Plot 275 first and later the mailo interest from one Nassali Erinayida. Nassali is the administrator of the estate of

the late Erenest Mukasa who was the owner of the kibanja and the mailo interest. After the sale, the respondents refused to give him vacant possession ofthe kibanja and he filed the suit against them.

- In their amended written statement ofdefence, the respondents denied the appellant's claim. They pleaded that the kibanja in question belonged to them as representatives of the late Allen Namirembe who was its owner. Further, they argued that before the death of the late Namirembe, the appellant had lost a case against her in respect of the kibanja in Gulama 5 - village Local Council I Court. Nandaula Harriet, the first respondent, is the daughter of the late Namirembe and had obtained letters of administration in respect ofher mother's estate. The second and the third respondents are Namirembe's grandchildren. All the three respondents lived on the said kibanja before Namirembe's death and continued to live there at the time the suit was filed. l0 l:

When the suit came up before the High Court, counsel for the respondents raised a preliminary objection that the suit was res-judicata and it was upheld.

o

Dissatisfied with the leamed judge's ruling, the appellant filed an appeal to this court on two grounds namely: -

- "(a) The learned judge erred in law and fact when he held - that the Local Council Court had jurisdiction to determine the land dispute between the plaintiff/appellant and Namirembe. - (b) The learned judge erred in Iaw and fact when he held that

#### the suit was Res-Judicata."

He prayed court to allow the appeal, set aside the ruling and orders ofthe High Court judge, order that the suit be heard on its merits and for costs in this court and the court below.

During the hearing of the appeal, the appellant was represented by learned counsel, Mr. Moses Kugumikiriza. Learned counsel, Mr. Simeo Lutakome represented the respondents. Counsel for the appellant handled the two grounds of appeal separately. I propose to handle both grounds together as they overlap.

On both grounds,the appellant counsel's complaint is that the leamed trial judge erred in fact and in law to hold that High Court Civil Suit No. ⁹¹8/2000 was res judicata whereas the LC.l court did not have jurisdiction to try the dispute. He submitted that the suit was an action for trespass and general damages against the three respondents. The appellant sued the respondents in two capacities. Firstly, as a kibanja owner and secondly, as the owner of mailo interest. The judge was wrong to rely on the judgement of Gulama village Local Council I Court that dealt only with the kibanja interest. He criticised the format of the LC.l court judgement. It was in a form of a letter to the chairman of Local Council II. Additionally, the Gulama LC. I court did not make any findings or orders on the matter that was between the parties. t5 20

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Mr. Lutakome, for the respondents supported the learned judge's holding that the suit was res judicata. He submitted that the judge examined the history ofthe case and the [aw. The judge found that according to section 7 of the Civil Procedure Act the suit was res judicata. Counsel further

argued that the respondents do not dispute the fact that the appellant is the owner of the mailo interest. They only claim the kibanja interest which they inherited from Namirembe. The late Namirembe had been unsuccessfully sued by the appellant in the Gulama village LCI Court. The appellant did not appeal against that decision. According to counsel, it was wrong for the appellant to file another suit in the High Court conceming the ownership of the late Namirembe's kibanja.

o

)

From the arguments by the appellant's leamed counsel, it appears to me that he does not dispute the fact that the three respondents claim the kibanja as successors in title of the late Namirembe. The thrust of his argument is that he is the owner JYe of mailo interest. The Gulama Village LCI court did have jurisdiction to determine the dispute between him and the late Namirembe. He also appeares to suggest that if the LCI court had had powers to entertain customary land disputes, that had been changed by the Land Act. I0 l5

With due respect ,I disagree. The late Namirembe had a kibanja on the appellant's land. The kibanja interest is of a customary nature and is always superimposed on land where someone else has another interest, like in the instant appeal, a mailo interest.

According to the Resistance Committee (Judicial Powers) Statute l0/98 section 4 and the schedule to the statute item 2 of the schedule, (now section 5(b) and 2"d schedule item ( I ) The Executive Committees (Judicial Powers) Act (Cap 8) Laws of Uganda 2000), the Local Council courts were empowered to hear and determine land disputes of ^a customary nature. The judgement of the LCI court was given on 14'h March 1998. The Land Act came into force on 2nd July 1998. The 25

Gulama village LCI court was, therefore, a competent court to hear and determine the dispute between the late Namirembe and the appellant conceming ownership of the kibanja. LCI courts are composed of lay people. They are supposed to hear evidence from both sides and give a decision.

o

t5

In the judgement of LCI court of Gulama village it is stated as follows: -

"The LCI Courl has considered the explanations from both sides. Ll/e have found lhol Namirembe is the rightful owner of the kibania. She has full powers ovet the kibanja hecause il was given to her forty sk G6) years back. On the other hand Sembatya has informed us in his document of 2/3/1998 that he has owned the kibanjo for ten (10) years only. By the time he bought the land he saw thot it was already occupied by another person who had a homesteod thereon with various types of crops, " (underlining mine) l0

From the above quotation it is clear that the LCI court decided that Namirembe was the lawful owner of the kibanja. The complaint by the appellant's counsel that the format of the LCI court left a lot to be desired and the LC court did not determine issues between the parties is not, therefore, tenable. 20

In his judgement, the learned judge dealt with the issue of whether HCCS No. 918/2000 was res judicata or not as follows:- 25

> "With regard to the second question section 7 of the Civil Procedure Act has this to say about the doctrine of res judicola.

> > 5

"7. No court shall try any suil or issue in which lhe malter direclly and substantially in issue has been directly and substantially in issue in o former suil between the same porties, or between parties under whom they or any of them claim, Iitigating under the same litle, in a court competent to try such subsequent suil or the suit in which such issue has been subsequently raised and hss been heard and Jinally decided by such court."

In the case of Kslnunue v Pioneer Assurance Ltd Il97I I E. A. ²⁶³ v-Sheridan !J) @s he then was) put the test whether or not a suit is borred by res judicata in the following words at page 265 of his judgement.

"The test ,,,,, seems lo me is the plaintiff in the second suit trying to bring to court in anothq way and in the form of a new cause of action, a transaction which he has already pul before s court of competenl jurisdiction in earlier proceedings and which has been adjudicated upon. If so, the plea of res judicata applies not only to points upon which the Jirst court wds actually required to adjudicate but to every point which properly belonged to the subjecl of litigation and which the parties exercising reasonable diligence, might hove brought forward at the |ime........."

l0

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Applying Sheridan (J's) test in the instant case, il is very clear that the substance o/ the head suit (ie, The ownership of the kibonja in question) was exactly what was in dispute in the LC cou between the late Namirembe and the plainliff in 1998, The

only difference between that dispute and the one at hand is that the latter is between the plaintiff and the defendants. However, the $1^st$ defendant is Namirembe's daughter and her representative in that she holds letters of administration in respect of The $2^{nd}$ and $3^{rd}$ defendants are Namirembe's estate. Therefore, for all practical Namirembe's grandchildren. purposes, court can say that the plaintiff is under the head suit, suing the late Namirembe again."

I agree with the judgement and the conclusion reached. Grounds 1 and 2 $10$ lack merit and therefore, fail.

In the result, I would dismiss the appeal with costs to the respondents.

Dated at Kampala this .................................... $15$

$\mathsf{S}$

CNIS Cilimbe, C. N. B. Kitumba **JUSTICE OF APPEAL**

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA

# AT KAMPALA

# CORAM: HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA. HON. JUSTICE C. N. B. KITUMBA, JA. HON. JUSTICE S. B. K. KAVUMA, JA.

$10$

$\cdot$

# CIVIL APPEAL NO. 98 OF 2003

F. W. SEMBATYA...................................

# **VERSUS**

- 1. NANDAULA HARRIET) - **KAYONDO** $2.$ ...................................... - PATRICK BUYONDO $3.$ )

[Appeal from the ruling of the High Court sitting at Kampala (Lugayizi, J.) dated 13/3/2002 in HCCS No. 918 of 2000]

# JUDGMENT OF HON. JUSTICE S. B. K. KAVUMA, JA.

I have had the advantage of reading in draft the judgment prepared by Hon. Lady Justice C. N. B. Kitumba, JA. I agree with the said judgment and the orders proposed therein. I have nothing useful to add.

Dated at Kampala this $\mathbb{S}^{\text{th}}$ ... ecember 2005. $...day of$ 30 S/B. K. Kayuma Justice of Appeal.

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CORAM: HON. JUSTICE A. E. N. MPAGI BAHIGEINE, JA $\mathsf{S}$ HON. JUSTICE C. N. B. KITUMBA, JA HON. JUSTICE S. B. K. KAVUMA, JA

## CIVIL APPEAL NO. 98 OF 2003.

#### F. W. SEMBATYA ................................... $10$

#### VERSUS

# 1. NANDUALA HARRIET }

3. PATRICK BUYONDO

2. KAYONDO

**:::::::::::::RESPONDENTS.**

[Appeal from the ruling of the High Court sitting at Kampala (Lugayizi, J.) dated 13/3/2002 in HCCS No. 918 of 2000]

### JUDGEMENT OF A. E. N. MPAGI BAHIGEINE, JA

I entirely agree with the judgement of Kitumba J. A. that the appeal lacks merit and should be dismissed. I have nothing useful to add.

As Kavuma J. A also agrees, the appeal fails and is $25$ dismissed with costs, as proposed by Kitumba J. A.

Dated at Kampala this ....................................

zalu Pin A. E. N. MPAGI BAHIGEINE JUSTICE OF APPEAL.

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