[2024] UGHC 1270

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT LUWERO HCT-17-CR-MA-0001-2023 (ARISING FROM NAKASEKE CRIMINAL APPLICATION NO. 003 OF 2022) (ARISING FROM NKSK CO.043/2022)**

**UGANDA ………….…………………………………………APPLICANT**

## **VERSUS**

# **RWABISHAKA DAVID………….……………….………RESPONDENT**

## **BEFORE LADY JUSTICE HENRIETTA WOLAYO**

## **RULING**

Introduction

- 1. By a letter dated 6.3.2023, the applicant Uganda moved the court under Sections 48 and 50 of the Criminal Procedure Code Act Cap 122 for revision of orders of Christine Nanteza Magistrate Grade One that stayed proceedings in **NKSK Criminal Case No. CO.043/2022 Uganda v Rwabishaka David**. The orders staying criminal proceedings were made in **Nakaseke Criminal Application No. 003 of 2022 Rwabishaka David v Uganda**. - 2. On 25.1.2024, when the case was called for hearing before me, Nakire Sandra state attorney appeared for the applicant while Nampola Elizabeth appeared on watching brief for the complainant. As the respondent was absent, I directed the state to serve him and adjourned the matter to 22.4.2024. To date, only the applicant filed written

submissions while the respondent filed none. I have carefully considered submissions of the state on record.

### Background facts

- 3. In Nakaseke Criminal Case No.43 of 2022 Uganda v Rwabishaka David, the respondent Rwabishaka was charged with the offence of fraudulent procurement of certificates of title c/s to Section 174 (i) of the Registration of Titles Act Cap 240 in at Nakaseke Magistrate's Court. It was alleged in the charge sheet that Rwabishaka and others on 13.7.2007 and 21.6.2007, fraudulently procured for himself certificates of titles for land comprised in **Bulemezi Block 796 Plots 10 and 26 land at Lukumbi Bukulu** by falsely presenting himself as a legitimate proprietor whereas not. - 4. At the time, **HCT-17-LD-CS-0128-2024(formerly HCT-00-LD-CS-0585-2021) Nalwada Resty and 2 others v The Commissioner Land Registration, Rwabishaka David and Phoebe Destiny Mwase,** was already filed and pending hearing in the High Court. - 5. The plaintiffs in the said suit seek declarations that the Rwabishaka and another were fraudulently registered on the certificates of title **to Block 769 plots 10 and 26** which is the same subject matter in Criminal Case No.43 of 2022 for which Rwabishaka was charged with fraudulent procurement of a certificates of title. The plaintiffs also seek an order directing the first defendant (The Commissioner Land Registration) to cancel the registration of the Rwabishaka and two others on the said land titles.

6. It is against this background that Rwabishaka filed Nakaseke Criminal Miscellaneous Application No. 003 of 2022 to stay the prosecution of Criminal Case No.43 of 2022 pending determination of the civil suit. The application that was brought under Section 9 of the Magistrates Court Act Cap 19 was ruled in favour of Rwabishaka on 23.1.2023. Dissatisfied with the Ruling, the prosecution now seeks revision of orders of the Learned Trial Magistrate Grade 1, Christine Nantege, as she then was.

#### Resolution of the case.

- 7.**Section 48 of the Criminal Procedure Act Cap 122** permits the High Court to 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 regularity of any proceedings of the magistrate's court. It therefore follows that this application is properly brought before the High court as it pertains to an order passed by the magistrate's court staying the prosecution of Criminal Case No.43 of 2022 pending determination of HCT-17-LD-CS-0128-2024. - 8.**Section 50 (1) (b) of the Criminal Procedure Code Act Cap 122** empowers the High Court to revise orders of the magistrate's court where it appears there are errors material to the merits of the case or where the proceedings disclose a miscarriage of justice has been occasioned. This power is restricted to all orders except orders of acquittal. If the High Court finds merit in the complaint it may reverse

the order and in the case of a conviction or sentence may set them aside or enhance a sentence.

9. It is evident from the magistrate's court record that Rwabishaka was charged with Fraudulent Procurement of certificate of Titles c/s 190 (1) of the Registration of Titles Act in Criminal Case No.43 of 2022. The particulars of the offence were that Rwabishaka and others still at large on 13.2.2007 and on 21.6.2007 at Bukalasa land Registry Wobulenzi Town Council in Luwero district fraudulently procured for himself certificate of titles for land comprised in Bulemezi Block 796 plots 10 and 26 at Lukumbi-Bukulu by falsely presenting himself as a legitimate proprietor whereas not. On 14.3.2022, Rwabishaka pleaded not guilty when the charge was read to him.

#### Facts in issue the same in both the civil and criminal case

- 10. It is not disputed that Rwabishaka is one of the defendants in Luwero High Court in HCT-17-LD-CS-0128-2024 in which the complainants in the criminal matter are seeking High Court to determine whether Rwabishaka was fraudulently registered on certificate of title for Bulemezi, Block 796, plot 10 land at Musaale Lukumbi Nakaseke District East Buganda. - 11. I have examined the plaint and the certificate of title in issue. It is evident that Rwabishaka acquired title in 2007 from Ekoyasi Segamwenge who had been registered earlier on 18.5.1966. He then transferred his interest to Phoebe Destiny Mwathe on 21.6.2007. On 4.9. 2016, she transferred her interest to Fortress Farm Limited.

12. From the foregoing undisputed facts, it is evident that the court in the civil dispute will examine the same evidence as the court in the criminal dispute. In both cases, the courts will be determining if Rwabishaka fraudulently acquired title in 2007 as alleged from the previous owner who acquired his interest in 1966.

#### Lis pendenes rule

- 13. Counsel for the applicant submitted that there is no law that bars concurrent hearing of a criminal case arising from same facts as a civil case. Jurisprudence on this position has evolved and the courts seem to be inclined to allow civil justice to take precedence where the facts give rise to both criminal and civil justice. - 14. Although the *lis pendenes rule* applies to civil cases, it is a good guide in situations where the same dispute has been criminalized. High Court Civil Suit. No. 128 of 2024 was filed in 2021 before the criminal case that was lodged in 2022. The *lis pendenes rule* captured in **Section 209 of the Magistrates Courts Act** and **Section 6 of the Civil Procedure Act Cap. 282** is to the effect that no court shall try a suit where the facts in issue are the same or substantially the same between the same parties or parties claiming under them as in a **previously** filed suit or a suit that is pending in the same court or another court with competent jurisdiction.

### 15.**Section 209 of the Magistrates Courts Act Cap 19** stipulates that:

*" No magistrates court shall proceed with a trial of any suit or proceeding in which the matter in issue is also directly or substantially in issue in a previously instituted suits or proceedings between the same parties or between parties under whom they or any of them claim litigating under the dame title, where the suit or proceeding is pending in the same or any other court having original or appellate jurisdiction in Uganda to grant the relief claimed"*

- 16. I agree with the interpretation of the above provision by my brother **Oyuko J** in the case of **Kaddu Dunstan & Mukasa Samuel v Uganda Criminal Revision Cause No.04 of 2022 (Arising from Criminal Case No.085 of 2022)** where he noted that the law in our jurisdiction is very clear and he had no reason to deny the prayer for stay of a criminal proceeding pending determination of the civil matter before the High Court Land Division and the subject matter between the two cases being the same. In the case before Oyuko J, the criminal case was commenced after the civil suit was filed, just as it is in the instant case. - 17. I also agree with the holding in **Simba Properties Investment Co. Limited and Others v Vantage Mezzanine Fund 11 Partnership and Others (Miscellaneous Application No. 414 of 2022) [2022] UGCommC 28 (24 May 2022) Ulii**, where the court noted that where a civil suit has been filed before a criminal proceeding has started, it may be advisable to stay the criminal proceeding as the decision in the civil trial may conclude the dispute.

- 18. Moreover, to allow the criminal matter to proceed would create a likelihood of conflicting judgements between the lower court and the High Court with regard to the facts in issue which does not auger well for the doctrine of precedence. Such a scenario would lead to confusion between the parties on which decision to go with not to mention protracted litigation. The criminal proceeding in the magistrate's court will have to wait until the High Court pronounces itself in the civil case. - 19. While it is true as counsel for the applicant submitted that the remedies in civil and criminal cases are different, the civil dispute should come first so that the court can give orders that not only settle the issue but also orders for deregistration if necessary or permanent injunctions depending on which party gets judgment. These remedies cannot be given in a criminal proceeding. - 20. The prosecution will be at liberty to pursue the criminal proceedings once the civil case pending before the High Court in Luwero is disposed of. Going forward, the same will be given priority and the parties are urged to take steps to have it fixed for hearing.

#### **Remedies**

21. For the reasons that the subject matter in both criminal and civil case is the same, namely, fraudulent registration as a proprietor on a title to land and that the court needs to avert confusion and unnecessary

litigation resulting from possible conflicting decisions in the lower court and the High Court, this application for revision of the decision of the learned trial magistrate is dismissed.

22. I find that the learned magistrate correctly stayed Nakaseke criminal case No. 042 of 2024 pending determination of Luwero High Court Civil Case No. 128 of 2024.

## Orders

- a. This application to revise the order of the learned trial magistrate is dismissed. - b. The decision of the trial magistrate staying criminal proceedings in Criminal Case No.43 of 2022 pending the determination of Civil Suit No. 128 of 2024 is hereby confirmed. - c. Either party in **HCT-17-LD-CS-0128-2024 Nalwada Resty and two others v Commissioner Land Registration and three others** may request a hearing date so that the dispute is heard and determined expeditiously.

**DATED AT LUWERO THIS 31st DAY OF OCTOBER 2024 \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**LADY JUSTICE HENRIETTA WOLAYO**

## **Legal representation**

Akello Gloria State Attorney for the state