[2024] UGHC 465

## **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT LUWERO**

## **HCT-17-CR-CV-0003-2023**

## **ARISING FROM**

# **(LUWERO CHIEF MAGISTRATE'S COURT CRIMINAL CASE NO. 305 OF 2020 AND MA NO. 5 OF 2021)**

**WASULA SAMUEL…………………….. APPLICANT**

**VERSUS**

# **UGANDA …………………………………. RESPONDENT BEFORE LADY JUSTICE HENRIETTA WOLAYO RULING ON AN APPLICATION FOR REVISION**

Introduction

- 1. On 05.04.2022, the applicant moved court under Sections 83 and 98 of the Civil Procedure Act, Section 33 of the Judicature Act and Orders 52 rule 1,2 and 3 of the Civil Procedure Rules for orders that; - a) The ruling of His Worship Samuel Munobe vide Miscellaneous Application No. 05 of 2021 and Miscellaneous Application No. 15 of 2021, all arising from Criminal Case No. 305 of 2020 be revised and set aside. - b) An order be issued staying proceedings in Criminal Case No. 305 of 2020 pending the hearing and disposal of Civil Suit No. 035 of 2019. - c) Costs of this application be provided for.

- 2. The grounds of this application are contained in the affidavit of the applicant. Wasula Samuel. The applicant later filed a supplementary affidavit. The respondent did not file an affidavit in reply. - 3. When the matter came up for hearing, I directed parties to file their written submission, only the applicant filed his written submissions. Therefore, I will determine the application without the respondent's input.

#### Background Facts

- 4. The applicant had filed **Luwero Chief Magistrate's Court Civil Suit No. 035 of 2019** against Lubowa John, Semuddu Eliezer and four others wherein he sued them for trespass, illegal eviction and destruction of his residential house and properties. - 5. The applicant was then charged in the same court under **Criminal Case No. 305 of 2020** with two counts of; Forgery c/s 342 and 347 and Uttering a false document c/s and 351 and 347 of the Penal Code Act Cap.120 and the proceedings are still ongoing before the Chief Magistrates Court at Luwero. The false document in issue is a land sale agreement dated 5.01.2012, made between the applicant Wasula Samuel and GW. Ssebowa, witnessed by the complainant/second defendant Semuddu Eliezer and two others. - 6. After the criminal proceedings had commenced, the applicant then filed **Miscellaneous Application No.05 of 2021** before the chief magistrate seeking a stay of criminal proceedings in **Criminal Case No. 305 of 2020**, owing to the fact the document (subject matter) on

which he is charged with counts of forgery and uttering false documents forms part of the subject matter in the ongoing **Civil Suit No.035 of 2019** before the same court hence this application for revision orders.

#### Resolution

- 7. On a procedural point, counsel submitted that the application is brought under Section 48 and 50 (5) of the Criminal Procedure Code Act and Section 17 (1) of the Judicature Act and not section 83 of the Civil Procedure Act Cap. 71. Based on the principle of the need to prioritize substantive justice enshrined in **Article 126 (2) (e) of the Constitution,** I will focus on the substance of the application before me. - 8. Revision entails an examination by the High Court of the record of proceedings of the Magistrates Courts for purposes of the High Court satisfying itself with as to the correctness, legality and the regularity of proceedings of that Court. - 9. **Section 50 (5) of the Criminal Procedure Code Act Cap. 116** provides that;

"*any person aggrieved by any finding, sentence or order made or imposed by a magistrate's court may petition the High Court to exercise its powers of revision under this section; but no such petition shall be entertained where the petitioner could have appealed against the finding, sentence or order and has not appealed."*

#### Applicant's case

- 10. Applicant's counsel submitted that the applicant seeks to set aside orders of His Worship Munobe (as then was) wherein he declined to stay proceedings in Criminal Case No. 305 of 2020 and to have the said proceedings stayed pending hearing of Civil Suit No. 035 of 2019. He further submitted that Civil Suit No, 035 of 2019 concerns issues arising from a sale of land between him and the complainant in Criminal Case No. 305 of 2020. - 11. Counsel submitted that in the event this criminal matter is heard and disposed of before the civil matter, the result will bias the subsequent decision of trial magistrate who happens to be handling both cases. Furthermore, that the trial of a criminal matter before the hearing and disposal of the civil matter is likely to cause a miscarriage of justice since court's finding in one of the suit would automatically bias the judicial officer. - 12. Counsel submitted that the applicant therefore seeks to stay the criminal case pending hearing and determination of the civil suit so as to avoid abuse of process and a miscarriage of justice. - 13. The Supreme Court in **Kulata Basangwa v Uganda [2018] UGSC 55 (3 December 2018)** pronounced that there was no bar to the institution of criminal charges against a party who also had filed a suit based on the same facts as the criminal charges.

- 14. In the Kulata precedent, the appellant had been charged by the Inspectorate of Government for abuse of office c/s 11 of the Anti-Corruption Act of 2009 before the Anti-Corruption Court whereupon, her lawyer raised a point of law to the effect that the trial could not proceed because Kulata had filed **Civil Suit No. 251 of 2010** in the High Court. - 15. The learned trial magistrate stated a case to the High Court for interpretation the gist of which was whether the IGG was barred from commencing criminal proceedings against Kulata when a civil case based on same facts was pending in the High Court. The High Court upon listening to arguments from both parties, found that the civil suit took precedence. - 16. On appeal to the Court of Appeal by the IGG, the Court of Appeal allowed the appeal. On further appeal, the Supreme Court upheld the decision of the Court of Appeal and cited with approval the finding of the Court of Appeal that:

*"It cannot be a correct proposition of 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 same facts…'*

19. Although the prosecuting agency was the IGG, the precedent applies equally to prosecutions commenced by the Director of Public Prosecution who has wide powers under **Article 120 of the Constitution as amended** to investigate and institute criminal proceedings against any person . **Article 120(6)** further commands that in exercising these powers, the DPP shall not be subject to direction or control of any person or authority.

- 17. The applicant instituted Luwero **Chief Magistrate's Civil Suit No. 035 of 2019 on 15.03.2019** and the second defendant Semmudu Eliezer is a complainant in **Luwero Chief Magistrate's Court Criminal Case No. 305 of 2020** against the applicant (plaintiff) in **2020**. Furthermore, the applicant's current case is based on the fact that the subject matter for which he is being prosecuted, is a land sale agreement which is also an exhibit to be relied upon and forms part of the subject matter in the suit. As pronounced by the Supreme Court in the Kulata precedent, both the criminal case and civil case will proceed simultaneously regardless that they are largely based on same facts. Remedies - 18. I note that the subject matter in Luwero CM Court C. S No. 035 of 2019 is Bulemezi Block 631 Plot 44. The parties are appearing before me in formerly **Land Division Civil Suit No. 325 of 2016 between Yeremiya Kayise v Wasula Samuel & Buganda Land Board.** The parties will address me on whether the subject matter in the two suits is the same to enable me make the necessary orders. This application lacks merit and will be dismissed.

#### Orders

i) This application is devoid of merit and is hereby dismissed.

- ii) The orders of His Worship Samuel Munobe vide Misc Application No.05 of 2021 and Misc Application No. 15 of 2021 are hereby upheld. - iii) The criminal proceedings in Luwero CM Court Criminal Case No. 305 of 2020 shall run simultaneously with proceedings in Civil Suit No. 035 of 2019. - iv) Parties will appear before me on 14.6.2024 at 9 a.m to address me on whether the subject matter in the civil suit before the Chief Magistrate is the same as in formerly Land Division Civil Suit No. 325 of 2016 to enable me make the necessary orders in exercise of my supervisory powers under **Section 17(1) of the Judicature Act Cap. 13** as amended. - v) Since this was a criminal revision case, no order as to costs is made.

# **DATED AT LUWERO THIS 10TH DAY OF JUNE 2024.**


Representation

Lukwago, Matovu & Co Advocates for the Applicant