[2024] UGHC 1035

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL** 3 **CRIMINAL REVISION NO. 002 OF 2023 (ARISING FROM KMG – 11 – CR – CO – 80 OF 2023 & KITAGWENDA CRB 133/2023)** 6 **UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS JOSEPH BYABAGAMBI RUHWEZA Alias BUGANDA :::: RESPONDENT** 9 **BEFORE: HON. JUSTICE VINCENT WAGONA RULING**

## **Introduction:**

- 12 The applicant, being the State, represented by the Office of the Director of Public Prosecutions (ODPP), applied by Notice of Motion citing Sections 13 and 17 of the Judicature act and Sections 48 and 50 of the Criminal Procedure Code Act, for an - 15 order that criminal proceedings in KMG -11 CR CO 80 of 2023, Kitagwenda CRB 133/2022 be allowed to proceed for hearing alongside civil case No. HCT- 01 –LD – CS – 0022 of 2022. - 18 **Grounds of the Application:**

The grounds of this application are contained in the Notice of Motion and 21 particularized in the affidavit of Bagambe Vincent who is the complainant in KMG – 11 – CR – C0 – 80 of 2023 and are as follows:

1. The complainant is the registered owner of land comprised in Plot 3 Block 24 95 at Katandura Village and Nyakabengo Village, Buhanda Sub County, Kabujogera Town Council, Kitagwenda District. On 5 th of March 2022, the respondent called a group of people who were armed with pangas, guns and


hoes and stormed his land and started forcefully creating a road in it. In doing so, they destroyed/damaged the fence made of *oruyenje* plants. The 3 complainant reported a case of malicious damage to property and criminal trespass at Buhanda Police Station in Kitagwenda District vide CRB 133/2022.

- 2. At the same time, on 10 6 th May 2022, the complainant instructed his lawyer to file a civil suit in Fort Portal Vide HCT – 01 – LD -CS – 022 of 2022. - 3. After police investigations, the respondent was taken to court for plea on 9 6/4/2023 and he was granted bail. On 2/08/2023 in court, he raised a point of law staying proceedings which was allowed by court on grounds that the issues in the criminal case were identical to those in the pending civil suit. - 12 4. That it is in the interest of justice that the application is allowed.

#### **Reply of the Respondent:**

The motion by state was opposed by the Respondent who deposed as follows:

- 1. The respondent never brought guns to the land of the complainant to create 18 an access road. The pending land matter, vide HCT – 01 – LD – CS – 0022 of 2022 is premised on facts which are identical to those in the criminal case. - 2. The case before the High Court is pending hearing and the criminal case had 21 not been closed. A stay of the criminal proceedings is in the interests of justice and fairness to avoid the potential of conflicting judgments and a fair adjudication of the civil matter. - 24 3. The stay is not in any way pre-judicial to the complainant save that the intention of the complaint is to see him persecuted than punished for good


cause. The respondent wondered what would happen if he is convicted in the criminal case but found not to have trespassed in the civil suit.

3 4. It is fair and just that this application is dismissed.

### **Representation and Hearing:**

Ms. Harriet Adubango, the Regional Officer in the ODPP at Fort Portal Regional Officer appeared for the applicant while Mr. Mugabi Kireru Geofrey appeared for

9 the Respondent. Both counsel filed written submissions that have been considered.

**Issues:**

- 12 **Whether the criminal proceedings in KMG -11 – CR – CO – 80 of 2023, Kitagwenda CRB 133/2022, should be allowed to proceed for hearing alongside Civil Case No. HCT- 01, given that both cases are based on the same facts.** - 15 **Consideration of the application:**

Section 48 of the Criminal Procedure Code Act Cap. 122 provides that: *"The High*

- 18 *Court may call for and examine the record of any criminal proceedings before any magistrate's 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* - 21 *regularity of any proceedings of the magistrate's court."*

Section 50 (1) of the same Act provides that: *"(1) In the case of any proceedings in* 24 *a magistrate's court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, when it appears that in those proceedings an error material to the merits of any case or involving* 27 *a miscarriage of justice has occurred, the High Court may—*


*(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections [34](https://ulii.org/akn/ug/act/ord/1950/13/eng@2000-12-31#part_III__sec_34) and [41](https://ulii.org/akn/ug/act/ord/1950/13/eng@2000-12-31#part_III__sec_41) and may enhance the sentence;*

3 *(b) in the case of any other order, other than an order of acquittal, alter or reverse the order."*

6 The applicant herein contends that the order of the trial magistrate staying proceedings in the criminal case **KMG -11 – CR – CO – 80 of 2023, Kitagwenda CRB 133/2022** on account of the pending civil suit in the High Court was illegal 9 and improper and court ought to revise it and set it aside. The fact that there is a pending suit over similar facts is not a ground for stay of the criminal proceedings. The court was referred to a number of authorities that is *Sarah Kulata v Uganda,*

- 12 *SC Crim Appeal No. 03/2018, Sebulime Baker v Uganda, HC Crim. Appeal No. 21 of 2018, Alinda Peter & 2 others v Uganda, HC Crim Appeal No. 12 of 2021 and Joseph Agenda v Uganda, HC Crim. Application No. 003 of 2011).* It was - 15 submitted that nature of remedies sought in the criminal case were different from those sought in the pending civil suit. That the fact that both cases were premised on the same facts is not a ground to have the criminal proceedings stayed in favour of 18 first proceeding with the civil case as was found by the trial magistrate.

Mr. Mugabi on the other hand held a contrary view. He asserted that issues of land 21 should not be confused with criminal issues. (See: *Sebulime Baker v Uganda, HC Crim. Appeal No. 639 of 2013)*. Learned counsel also invited me to the case of *Uganda v Ochom Silvestor & Anor, HC Crim. Appeal No. 25 of 2013*; **"***before I*

- 24 *take leave of this matter that there are so many land matters that are turned into criminal matters by police so as to gain jurisdiction over the matter. A police officer and the State Attorney will prefer criminal charges in civil matters well* - 27 *knowing that a criminal conviction will not serve the land dispute. There are*


*borderline marks, criminal trespass and threatening violence are easy to prosecute just fuel enmity and do not grant land rights to any one or solve question of*

- 3 *ownership."* Learned counsel contended that the learned trial magistrate rightly held that the charges in the criminal case and the facts of the civil suit are the same. Therefore, the criminal case filed against the Respondent was merely criminalizing - 6 a land matter. That as such court should be pleased to dismiss this application for want of merit.

#### 9 *Consideration by Court:*

It is not a requirement of the law that whenever a civil suit is filed on the basis of the 12 same facts that resulted in a criminal matter, the criminal matter must be stayed pending the conclusion of the civil suit. This was explained by the supreme court of Uganda in *Supreme Court Crim. Appeal No. 03 of 2018, Sarah KulataBasangwa*

- 15 *v Uganda* quoting with approval the dicta of the Court of Appeal thus; "*We are in agreement with the Court of Appeal that criminal proceedings may emanate from the same facts but it doesn't deter prosecutors to initiate criminal proceedings* - 18 *because the facts are similar to that of the criminal case*. *It cannot be the correct position of the law that where a civil suit is pending between two parties, no criminal proceedings may be instituted against one of the parties arising from the* - 21 *same facts*." Court further noted that;

*"It is not correct to suggest that whenever criminal proceedings are instituted in respect of a matter that is also a subject of litigation, that alone* 24 *amounts to interference with the independence of the judiciary*."

Recently in **Uganda versus Kamoga Muhammadi, Criminal Appeal 646 of 2023,** 27 in its judgment dated 4/10/2024 the Court of Appeal stated as follows:


**"Another point of contention was on the stay of proceeding in the criminal matters because of civil suits filed. Criminal cases focus on** 3 **offenses against the state and public order, while civil cases address disputes between individuals or entities seeking to enforce private interests. Criminal matters are generally considered to be of public** 6 **interest. This is because crimes are viewed as offenses against society as a whole, not just against individual victims. It is difficult to discern how litigation involving private interests can take precedence over public** 9 **interest litigation. ln** *Sarah Kulata Basangwa u Uganda (supra)* **it was stated that:**

**"criminal proceedings may emanate from the same facts but it** 12 **doesn't deter prosecutors to institute criminal proceedings because the facts are similar to that of civil case".**

15 **In** *Uganda v. Sonko Criminal Revision 12 of 2019***, the High Court correctly held that the order to stay Criminal Case No CO-0760-2018 in preference of civil suit No 172/2028 was improper and offends the well-**18 **established legal position that gives criminal cases precedence over civil matters. Criminal and civil cases serve different purposes and can proceed concurrently. Criminal proceedings emanating from the same** 21 **facts as civil proceedings cannot be stayed because of the latter unless there are serious grounds that may affect a party's right to a fair hearing as provided for in the constitution. In this matter we do not see the** 24 **grounds.**


**The respondent submitted that it is fashionable for litigants in land disputes, which are the subject of pending suits to resort to criminal** 3 **prosecutions of their adversaries in a manner intended to oppress using and abusing the office of the DPP. The mandate of the DPP is provided for in Article l20 of the Constitution. Article 120 (5) of the Constitution** 6 **provides that in exercising his or her powers under this Article, the Director of Public Prosecutions shall have regard to the public interest, the interest of the administration of justice and the need to prevent abuse** 9 **of legal process. Article 120 (6) states that in the exercise of the functions conferred on him or her by this article Director of Public Prosecutions shall not be subject to the direction or control of any person or authority.** 12 **The DPP has the authority to initiate, conduct and discontinue criminal prosecutions without interference. Where a party is aggrieved by the DPP's decision there are legal remedies provided. A party may inform** 15 **the DPP about the unfairness of its decision of prosecution, who if satisfied may apply for a withdrawal or determinate the prosecution or** *nolle-proseqti***. In the event of prosecution, a party may challenge it or** 18 **provide a defense during a trial. In the event of conviction, a party may still appeal. An aggrieved party still has an option to file a suit under the tort of malicious prosecution. There are other mechanisms to ensure that** 21 **while the DPP has significant powers they are not absolute. However, to stay criminal proceedings while civil proceedings are continuing is not one of the mechanisms envisaged unless there are exceptional** 24 **circumstances.**


# **………. If a party commits a crime in pursuit of its civil rights, he or she can still be prosecuted."**

A stay of criminal proceedings in favour of civil proceedings can only be granted in exceptional circumstances. In this case, I have considered the submissions of the 6 parties and the record of the trial court. The charges against the respondent were malicious damage to property and criminal trespass. In the civil suit as captured by the trial magistrate, the plaintiff who is the complaint in the criminal case sought a 9 declaration that he was the owner of the suit land. It was contended for the respondent that the issues in both cases being trespass, they are identical and it was fair to stay the criminal case and have the question of ownership first be determined 12 by the High Court. The respondent in his affidavit in reply stated that he never brought guns to create a road on the complaint's land. The respondentseemsto assert that he never trespassed on the land in issue and never damaged the complaint's 15 fence. The question of malicious damage cannot be canvased in the civil suit since it's a criminal act punishable as such if the complainant is found guilty in a criminal court and in a civil case, damages can be granted against the wrong party to 18 compensate for the loss that the complaint suffered. I therefore find that there is nothing to justify the stay of criminal proceedings; the criminal charges can be heard concurrently with the civil suit. I therefore set aside the order of the trial magistrate 21 staying the criminal proceedings in KMG – 11 – CR – CO – 80 of 2023. I order that

- the criminal case KMG 11 CR CO 80 of 2023 be heard concurrently with civil suit in HCT- 01 –LD – CS – 0022 of 2022. The lower court file should be sent - 24 back to Kamwenge and allocated to another Magistrate within the magisterial area to hear the same. I so order.



Vincent Wagona

3 **High Court Judge FORT PORTAL**

**DATE: 30/10/2024**