[2024] UGHC 854

#### **THE REPUBLIC OF UGANDA,**

#### **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

#### **CRIMINAL REVISION NO. 001 OF 2024**

#### **(ARISING FROM CRIMINAL CASE NO. KMG-11-CR-CO-22 OF 2022)**

**UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

**1. KARUHANGA GORDON 2. BYAMUKAMA JAMES 3. KUHIRWA PATIENCE 5. KINKUHAIRE ELIGARD 6. MUGIZI JULIUS 7. MUTABAZI TIMOTHY**

**4. MUGENYI RICHARD :::::::::::::::::::: RESPONDENTS**

#### **BEFORE HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **RULING**

#### **Introduction**

This ruling arises out of the complaint by the Director of Public Prosecutions (DPP) challenging the decision of H/W Seyiga Abdullswabul, the Magistrate Grade 1 of the Chief Magistrate's Court of Kamwenge at Kicheche wherein he ordered for a stay of criminal proceedings against the respondents pending the determination of Civil Suit No. 02 of 2023 before the Chief Magistrate's Court of Kamwenge. The DPP contends that such a decision is erroneous and merits revision by this court.

#### **Background**

The respondents were charged with the offence of intermeddling with the property of the deceased contrary to section 11(1) of the Administrator General's Act. It is the prosecution's case that during the year 2020 at Kagorra Cell, Kitagwenda Town Council in Kitagwenda district the accused persons, without lawful authority of the Administrator General, took possession of the property of late Kamugendera Benjamin.

On the 16th of January 2024, when the matter came up for hearing, counsel for the accused, the respondents herein, notified the trial court that the complainants had filed Civil Suit No. 02 of 2023 before the Chief Magistrate Court of Kamwenge at Kamwenge and there was a likelihood of having conflicting judgements if the two cases were to be heard concurrently. Counsel for the accused persons then applied for the stay of criminal proceedings pending the determination of the civil suit.

On the 22nd of February 2024, the learned trial magistrate granted the application and ordered for the stay of the criminal proceedings pending the determination of the civil suit. The DDP, being aggrieved by the decision of the trial magistrate, lodged a complaint against that order on account of being erroneous and called upon this court to exercise its revisionary powers.

## **Representation and Hearing**

Ms. Naiga Margaret represented the applicant while Mr. Arinaitwe Ambrose represented the respondents. The hearing proceeded by way of written submissions. Both counsel filed written submissions that I have considered in this ruling.

## **Issues for determination**

- i. Whether the order of the trial magistrate staying criminal proceedings in Criminal case No. 22 of 2022 pending determination of Civil Suit No. 2 of 2023 should be revised and set aside. - ii. What remedies are available to the parties?

## **Submissions by Counsel for the Applicant**

Counsel for the applicant submitted that this court is vested with revision powers under section 50(1)(b) of the Criminal Procedure Code Act. It was the submission of counsel that it is not the proposition of the law that where a civil suit is pending between the parties, no criminal proceedings can be instituted against one of the parties arising from the same facts. Counsel referred this court to the cases of *Sarah Kulata Basangwa v. Uganda SC Criminal Appeal No. 3 of 2018* and *Alinda Peter & Others v. Uganda HC Civil Appeal No. 12 of 2021.*

Counsel argued that in determining whether an order of stay criminal proceedings pending determination of a civil matter should be granted, the burden is on the accused to demonstrate to the court that he or she will suffer a real danger of injustice as a result of the concurrent proceedings. Counsel referred this court to the case of *Uwera Agnes v. Uganda HC Criminal Revision No. 31 of 2022.*

Counsel for the applicant argued that a stay of criminal proceedings must take into consideration a number of factors, among them; the possibility that the criminal action might deprive the defendant of a fair trial in a civil matter, whether the disclosure of the defense in criminal proceedings might give the defence an unfair advantage resulting in a miscarriage of justice, and the conduct of the defendant.

Counsel for the applicant argued that in the instant case, the respondents are not deprived of a fair trial, but they are only frustrating the complainants by deliberately failing to follow up on the appeal they instituted in this court vide Civil Appeal No. of 2023.

Counsel for the applicant argued that the accused persons are frustrating both the civil and criminal proceedings hence occasioning a miscarriage of justice to the complainants. Counsel for the applicant submitted that the respondents have taken advantage of the status of both criminal and civil proceedings to continue intermeddling in the property of the deceased.

Counsel for the applicant submitted that in the circumstances, the order for a stay of criminal proceedings should be set aside since the accused will not suffer any injustice.

## **Submissions by Counsel for the Respondents**

Counsel for the respondents submitted that the applicant herein did not object to the application for the stay of criminal proceedings. Counsel argued that the respondents herein have a genuine defence of a claim of the criminal case. Therefore, it would occasion a miscarriage of justice if the criminal proceedings were concluded before determining their civil rights.

Counsel for the respondents argued that the criminal and civil proceedings are substantially identical and arise from the same facts and this necessitated that criminal proceedings be stayed until the civil proceedings are concluded. Counsel argued that if both cases were heard concurrently, then the respondents' civil case would be prejudiced.

Counsel for the respondents argued that there is a need to determine the question of ownership of the disputed land, first before the offence of intermeddling is heard. Counsel argued that the position in *Sarah Kulata Basangwa Vs Uganda (supra)* should be applied on a case-by-case basis and this instant case deserves a stay of criminal proceedings pending the determination of the civil rights of the respondents.

### **Consideration by Court**

The power of this court in criminal revision is laid out in sections 48 and 50 of the Criminal Procedure Code Act. Under the said provisions, this court is enjoined to examine the record of proceedings for purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence, or order recorded or passed and to investigate the regularity of any proceedings in the lower court *(see: Mabalangaya v. Saga [2005] 1 EA 236).*

In the case of *Uganda v. Adongpiny Evelynn HC Criminal Revision No. 01 of 2022,* Hon Justice George Okello held that:

> *"Revision is therefore an exercise of discretion which must be done judiciously. Discretion here, basically, is the faculty of deciding or determining in accordance with the circumstances, and what seems just, fair, right, equitable and reasonable in those circumstances. It involves a latitude of individual choice according to the particular circumstances"*

In the instant case, the order that is subject to revision that staying criminal proceedings pending the determination of a civil suit.

In the case of *Uwera Agnes v. Uganda* **(supra)**, Hon Justice Gadenya Paul Wolimbwa held that the laws of general application to civil and criminal matters have no provision for staying criminal proceedings in preference of civil proceedings. However, after a careful review of decided cases both in our jurisdiction and foreign jurisdiction, the learned judge set out parameters that should guide the courts in determining whether

criminal proceedings should stay pending the determination of the civil proceedings. These parameters are:

- a) Presence of two concurrent suits or proceedings, one of which is previous or filed earlier than the other before any court vested with jurisdiction; - b) The suit or proceedings are between the same parties; - c) The subject matter of the suit or proceedings is directly or substantially the same; and - d) There is a real danger of the Applicant being prejudiced if concurrent proceedings are allowed to continue.

It is against these parameters that the trial magistrate would have determined the application for a stay of the criminal proceedings, bearing in mind that the onus is on the accused to prove to this court, that there is a real danger that injustice may be occasioned as a result of concurrent hearing of both cases. I will proceed to subject the trial magistrate's order against these parameters.

# **Presence of two concurrent suits or proceedings, one of which is previous or filed earlier than the other before any court vested with jurisdiction**

Counsel for the applicant does not dispute the existence of two concurrent proceedings before any court vested with jurisdiction. The record shows that on 9th February 2022, Criminal case No. 22 of 2022 was instituted at the Chief Magistrate's Court of Kamwenge at Kicheche against the respondents. In 2023, a civil matter vide Civil Suit No. 02 of 2023 was filed before the Chief Magistrate Court of Kamwenge at Kamwenge. No doubt, there are two concurrent suits in two courts with jurisdiction to hear them. I note that the respondents herein raised a preliminary objection contesting the jurisdiction of the Chief Magistrate to hear and determine Civil Suit No. 02 of 2023 but that preliminary objection was overruled, and the respondents have since appealed against that ruling vide Civil Appeal No. 30 of 2023 which is pending before this court. In the premises, parameter one has been proven.

## **The subject matter of the suit or proceedings is directly or substantially the same**

Counsel for the applicant does not contest the issue of proceedings being substantially the same. She contends that it is not a correct proposition of the law that if a civil suit is pending between parties, no criminal proceedings, arising from the same facts, may be instituted against one of the parties.

On the other hand, counsel for the respondents argued that the two matters are directly identical and substantially the same.

In granting the application, the trial magistrate observed that:

*"It is clear that the complainants who are the family members of the late Benjamin Kamugendera in a criminal case are the plaintiffs in the civil suit pending in the chief magistrate's court in Kamwenge and the accused persons in the criminal case are defendants in the civil suit. The facts of the claim raised in the plaint filed before the chief magistrate's court of Kamwenge are substantially identical to the particulars of the offence and all the facts in all cases arising in the same period which is 2020. The offence of intermeddling in the estate of the deceased hinges on the proof of ownership of the property in question as being under the estate of the deceased and this is the gist of proceedings filed* ## *by the same complainants at the Chief Magistrate's Court of Kamwenge"*

As rightly observed by the learned trial magistrate, the key ingredients of the offence of intermeddling with the property of the deceased under section 11(1)of the Administrator General's Act are; proof that the property belongs to the deceased, the intentional act of interference (such as selling, transferring or using the property in any other way) with the property by the accused, and lack of legal right by the accused to deal with such property.

Under paragraph 4(a) of the plaint in Civil Suit No. 02 of 2023, the plaintiffs are beneficiaries of the estate of the late Benjamin Kamugendera and sometime in the year 2020, the defendants connived the 3rd, 4th and 6th defendants connived with the 1st, 2nd and 5th defendants and unlawfully sold them the suit land contrary to the will of the late Benjamin Kamugendera. The plaint further states that the defendants lawfully occupied and put developments on the suit land, being the estate of the late Benjamin Kamugendera.

Among the prayers sought is the declaration that the suit land belongs to the estate of the late Benjamin Kamugendera and an order for recovery of the same.

According to the charge sheet, the accused persons are charged with intermeddling with the property of the deceased contrary to section 11(1) of the Administrator General's Act as amended. The particulars are that the accused persons in the year 2020 at Kagorra Cell, Kitagwenda Town Council in Kitagwenda district without the authority of the administrator general took possession of the property of the late Kamugendera Benjamin.

I find that the two suits are identical and substantially the same. In the premises, parameter two is also proved.

## **The suit or proceedings should be between the same parties under whom they claim or litigate**

It is trite law that civil proceedings are instituted by the state, through the office of the DPP on behalf of the complaint. According to counsel for the applicant, prior to the hearing of the criminal case, A5, A6 and A7 were still selling part of the suit land to other people and when the complainants sought the court's intervention to stop them, the trial court advised them to file a civil suit to obtain injunctive orders. According to counsel for the applicant, this prompted the complainants to file Civil Suit No. 02 of 2023.

It is therefore not in dispute that the plaintiffs in Civil Suit No. 02 of 2023 are the complainants in Criminal Case No. 22 of 2022 before the Chief Magistrate's Court of Kamwenge.

I notice that A1, Karuhanga Gordon and A4, Mugenyi Richard, are not parties (defendants) in the civil suit, and the 2nd defendant in the civil suit, Ram Alimpa, is not among the accused in the criminal case. However, A2, A3, A5, A6, and A7 are defendants in the civil suit.

I find that the two suits are between the same parties to the extent that the motivation to file the civil suit was in anticipation of obtaining injunctive orders restraining A5, A6, and A7 from continuing to sell or transfer the suit land to third parties and A5, A6, and A7 are defendants in the civil suit. I consider parameter 3 proved for the reasons given above.

## **Is there a real danger of prejudice against the applicant if criminal proceedings are allowed to proceed**

Decision of Hon. Justice Vincent Emmy Mugabo Page **9** of **13** Counsel for the applicant argued that the accused persons did not demonstrate to the court how they would be deprived of a fair trial in the pending civil suit to warrant a stay of the criminal proceedings. Counsel argued that the accused persons were the ones frustrating the complainants by deliberately failing or refusing to follow up the appeal instituted in this court vide Civil Appeal No. 30 of 2023.

On the other hand, counsel for the respondents argued that there is a real danger of prejudice to the respondents if both cases are adjudicated concurrently. Counsel for the respondents argued that there is a need to determine ownership first before the offence of intermeddling is heard.

Counsel for the respondents also argued that the respondents have not in any way frustrated the hearing of any case and are instead determined to appeal on the jurisdiction of the civil suit heard and determined by this court.

It is trite that in an application for a grant of stay of criminal proceedings, the burden of proof lies on the accused to show the court that the continuance of the criminal proceedings will occasion injustice to him or her. I, however, hasten to add that the standard of proof is on the balance of probability.

It is also the position of the law that criminal proceedings can only be stayed if the accused can prove that there is a real danger of prejudice against him or her if both matters were to proceed concurrently.

In the case of *Uwera Agnes v. Uganda (supra)* court listed 6 factors that must be considered in determining whether the accused will be prejudiced with the concurrent hearing of identical cases. These factors are:

## *"a) the possibility that the criminal action might deprive the defendant of a fair trial in the civil trial*

*b) the proximity in time of the trial of the criminal proceedings to the trial of the civil action.*

*c) where the disclosure of the defence in criminal proceedings by an accused may give the defence an unfair advantage, resulting in a miscarriage of justice in the civil proceedings;*

*d) the burden on the defendant of preparing for both sets of proceedings concurrently;*

*e) whether the defendant has already disclosed his defence to the allegations; and*

*f) the conduct of the defendant, such as his own prior invocation of the civil action when it had suited him"*

In the instant case, although counsel for the applicant argued that the respondents would be prejudiced in the civil matter, he did not demonstrate either to the lower court or this court how the concurrent hearing of the two cases would deprive the respondents of a fair trial in civil proceedings. Equally, there is no indication that any disclosures in the criminal proceedings will give an unfair advantage to the complainants that would lead to a miscarriage of justice in the civil trial. Additionally, the respondents do not plead that they are in any way overburdened in preparing for both sets of proceedings concurrently.

I note that in reaching his decision, the trial magistrate did not subject the application to the test of "a real danger of prejudice." To him, the fact that both suits are identical or substantially the same was sufficient to order for a stay of criminal proceedings.

Decision of Hon. Justice Vincent Emmy Mugabo Page **11** of **13** In the absence of a demonstration of how concurrent hearing of both cases poses a real danger of prejudice to the respondents, then an order of stay of criminal proceedings, if granted without exercising caution, may, instead, prejudice prosecution and by extension the complainants, given that in some instances evidence may fade and potential witnesses may have a memory lapse.

This court does not find any real danger of prejudice that the respondents will suffer if both cases proceed concurrently.

I should say that the old narrative of a likelihood of conflicting judgments if criminal proceedings are not stayed amounts to nothing less than an indictment on the competence of the courts. Such a narrative should not be accorded any credence, as courts, in their administration of justice, possess the competence and expertise to adjudicate matters through a thorough analysis of evidence and the proper application of legal principles. Issuing an order based on such a narrative risks eroding public confidence in the court system.

If the respondents have a defence of claim of right, as counsel argues, then the solution is not in the stay of criminal proceedings but in hearing the matter and then the court making its decision based on analysis of evidence and application of the legal principles.

While the grant of an order for a stay of criminal proceedings pending the determination of the civil proceedings is an exercise of judicial discretion, that discretion must be exercised judiciously putting into consideration various competing considerations.

In the instant case, I find that discretion was not exercised judiciously when the learned trial magistrate handed down the impugned order without a finding as to whether the concurrent proceedings posed a real danger of prejudice to the respondents. It is not sufficient that the matters in both cases are substantially the same. Therefore, parameter four is not proved.

I find that the order for a stay of criminal proceedings pending the determination of the civil suit without a finding on concurrent proceedings posed a real danger of prejudice to the accused persons was not justified in the face of applicable legal principles.

In the circumstances, this court therefore has to exercise its revisionary powers and set aside the order of the learned trial magistrate.

Accordingly, the decision of the trial magistrate directing the stay of criminal proceedings in Criminal Case No. 22 of 2022 pending the determination of the Civil Suit No. 02 of 2023 before the Chief Magistrate's Court of Kamwenge is hereby set aside.

The trial magistrate is directed to hear criminal case No. 22 of 2022 expeditiously.

The Deputy Registrar shall transmit the lower court file back to the lower court.

It is so ordered.

Dated at Fort Portal this 29th day of August 2024

**Vincent Emmy Mugabo Judge**