[2023] UGHC 502

# THE REPUBLIC OF UGANDA

File Co

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

## **LAND DIVISION**

#### MISC. APPLICATION NO. 792 OF 2022

## (ARISING FROM CIVIL SUIT NO. 208 OF 2022)

ENG. LUBEGA TWAHA YIGA :::::::::::::::::::::::::::::::::::: **<u>....................................**</u>

## **VERSES**

1. RITA WALIGO

$\ddot{\phantom{a}}$

- 2. WALIGO ANDREW BAKIKA - 3. WALIGO ALAN DAVID WUNYI - 4. SENKATUKA BARBRA WALIGO (Suing as Administrators of the Estate of the Late Abraham Pellew Nkalubo Waligo) ::::::::::::::::::::::::::::::::::::

## BEFORE: HON LADY JUSTICE NABAKOOZA FLAVIA. K

# **RULING**

- 1. The Applicant moved court by way of a notice of motion under **Section 5** and 98 of the Civil Procedure Act, Section 38 and 41 of the Evidence Act and Order 52 Rules 1, 2 and 3 of the Civil Procedure Rules, seeking orders $that:$ - a) Civil Suit No. 159 of 2022 is both an abuse of court process and barred by law due to the existence of the judgment in the Criminal Case No. 1389 of 2016 in the Chief Magistrates Court and accordingly the suit is dismissed. - b) Civil suit No. 159 of 2022 is time barred and is dismissed. - c) Costs of this application be awarded to the Applicant. - 2. The grounds of the application are contained in the notice of motion and supported by an affidavit deposed to by Alex Kafero. The grounds are that the 1^st and 4^th Respondents initiated and testified in Criminal Case No. 1389 of 2016 against the Applicant in the Chief Magistrates court at Makindye on counts of forgery of a judicial document, uttering of a false document and fraudulent procuration of a certificate of title for land comprised in Block 272 Plot 35 contrary to Section 190(1) of the Registration of titles Act. That the Applicant was found not to be liable but the same aspects of forgery of a judicial document and fraudulent procuration of a certificate

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of title hove been ploced before this couri for odjudicotion. Thot o competent court hos olreody pronounced itself on the soid issues ond lhe judgment hos never been oppeoled. Thot the instont suit is o disguised oppeol with the effecl of oltering or confirming the decision of the Chief Mogistrotes Court.

3. The Respondents opposed the opplicotion through on Affidovit deposed to by the 4m Respondenl, with writlen outhority from the I n, 2nd ond 3rd Respondents. She overred thot they ore Administrotors of the lote Abrohom Pellew Nkolubo Woligo whose estote comprises the suii lond ond ore in possession of lhe originol duplicote certificole of Tille to thot effect. Thol the Applicont hos never been in possession of the suit lond but the Respondents. Thot the Respondents leornl of the froudulent octs ond illegolities committed by the Applicont ond his co-froudsters in eorly October 201 4 on informotion f rom the occuponts of the suil lond ond upon inspecting the Register of Wokiso Moilo office. Thot the Applicont wos owore of his predecessors' froud ond the Respondents' interest in the suit lond but tronsocted on the some to defeot the lotter's interest thereon.

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- 4. Furiher, thot only porties to o criminol cose con oppeol ogoinst it but Criminol Cose No. l3B9 of 2016 wos instituted by the Director of Public Prosecution ond the Respondents were not porties to it. Thot they hove never instituted ony suit ogoinst the Applicont or ony of the porties lo the heod suit in respeci of the suil lond. Thot the burden ond stondord of proof ond remedies sought in criminol coses is different from civil coses ond the remedies sought in the heod suit, could not be obtoined in the soid criminol cose. Finolly, thot Section 38 of the Evidence Act cop 6 or ony other low does not bor lhe heod suit or this opplicotion. - 5. ln rejoinder, the Appliconi overred thot he hos been in possession of the suit lond since 2014; ond thot he never porticipoted in ony froud while ocquiring the suit lond or been owore of ony froud. Thol the Respondents need not be porties 1o the criminol motter for this suit lo be borred by low, ond the burden of proof in both criminol ond civil motters is on the porly olleging presence of the olleged focts. Thot hod the Appliconl been convicted by the lower court, the Respondents would hove gotien the remedies sought in this suit under Counl 5 of froudulenl procurolion of title controry 1o Seciion 190 of the Registrolion of Titles Act. Subsequently, thot the title ond nome of the Applicont would hove been concelled by lhe

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lower court and the Respondents would apply to this Court for consequential orders to that effect.

- 6. During hearing of the application, the Applicant was represented by M/s Oketcha Baranyanga & Co. Advocates while the Respondents were jointly represented by M/s Nexus Solicitors & Advocates and Najjuma, Nakalule & Co. Advocates. Counsel for the parties filed written submissions which I have considered. - 7. The following issues were raised by the Applicants' Counsel for determination by this court; - i. Whether Civil Suit No. 159 of 2022 is an abuse of Court process and barred by law due to the existence of the judgment in Criminal Case No. 1389 of 2016 in the Chief Magistrates Court of Makindye at Makindye? - ii. Whether Civil Suit No. 159 of 2022 is time barred? - 8. In his submissions in reply, Counsel for the Respondents raised a preliminary objection about the validity of the affidavit in support of the application and rejoinder. He argued that the affidavits sworn by a one Alex Kafeero, an Advocate in Okecho Baranyanga & Co. Advocates who are the legal representatives of the applicant offends Regulation 9 of the Advocates (Professional Conduct) Regulations S. I 267-2. - 9. That Regulation 9 (supra) provides bars an Advocate from appearing in a matter which he or she has reason to believe that he or she will be required as a witness; except on a formal or non-contentious matter. Counsel argued that the said advocate is named as the 1^st witness on the Applicant's summary of evidence which is attached on the application. - 10. Counsel further cited the case of Henry Kaziro Lwandasa Versus Kyas Global Trading Co. Ltd. Misc. Appln No. 865 of 2014, where Madrama J. (as he then was) held that "the regulation bars an advocate who may be required to appear as a witness to give oral or affidavit evidence in any contentious case or matter from appearing before any court or tribunal hearing the matter. The regulation is permissive on one part and mandatory on another part". He prayed that the affidavits in issue be expunged from the court record for violation of the legal provisions stated above. - 11. In reply, Counsel for the Applicant contended that the said Regulation has been misinterpreted. That the Regulation bars an Advocate in his individual

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capacity to appear or be on record in court or tribunal in a matter he has reason to believe that he will be required to testify as a witness. That in the instant matter, a different advocate (Seninde Saad) appears or is on record in court and another advocate (Alex Kafeero) swore the affidavit in support of the application though both Advocates are from the same law firm. That the impugned affidavits are properly sworn.

- 12.1 have considered Regulation 9 of the Advocates (Professional Conduct) Regulations SI 267-2, which I shall not reproduce. I have also appreciated the decision of court in Henry Kaziro Lwandasa vs. Kyas Global Trading Co. **Ltd (supra)**, but I find it distinguishable from the facts of the instant case. - 13. In addition, I note that in **Uganda Development Bank vs. Kasirye** Byaruhanga & Co. Advocates, SCCA No. 35/1994, the Supreme Court guided that an Advocate who finds him/herself in such a situation, like in this case, has to choose whether to act as a witness or as Counsel. Furthermore, in MA No. 036 of 2023: The Most Reverend Dr. Steven Samuel Kazimba Mugalu Vs Mazzi Joyce & 5 Ors, Dr. Justice Flavian Zeija properly observed that "where an advocate does not appear in personal conduct of a matter, he/she can depose an affidavit on matters within his knowledge on behalf of his client, a best example is an advocate supporting an application raising a point of law". - 14. In view of the above authorities and observation, I agree with the Applicant's Counsel that the aforesaid Regulation only affects an individual Advocate and not the entire law firm. In this case, the impugned affidavits were deposed to by Alex Kafero. However, the said deponent is not the one in personal conduct of the application, as per the record. Consequently, I find that the deponent is not barred from deposing to the impugned affidavits. Accordingly, the preliminary objection is hereby overruled. The Application shall proceed on its merits. Issue No.1

Whether Civil Suit No. 159 of 2022 is an abuse of Court process and barred by law due to the existence of the judgment in Criminal Case No. 1389 of 2016 in the Chief Magistrates Court of Makindye at Makindye?

15. Counsel for the Applicant submitted that the suit is barred by Section 5 of the Civil Procedure Act, and Sections 38 and 41 of the Evidence Act due to the presence of a binding judgment of the Chief Magistrates Court Makindye in Criminal Case No. 1389 of 2016 that has never been appealed.

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- l5. Thot the instont suit is obout the some subject motter with similor issues for determinotion lhot is, forgery of o judiciol documenl ond froudulent procurotion of title of the suit lond by the Applicont. Thol the remedies sought in the suit ore provided for under Seclion 190 of the Registrotion of Tilles Act from which one of the counts in the chorge sheei wos coined. - 17. Thot there would be no need of this suit ogoinst the Applicont hod he been found lioble for forgery ond froud in the lower court. - l8. Counsel relied on the cose of Core Woods Lld Vs Senyogo Mohommed Mulendo & 7 Ors HCCS No. 67 ot 2010 where Justice Boshoijo stoted ihot:

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I therefore concur wilh submissions of the vorious Counse/ for the defendonts thot the present suil is boned by low under Seclion 5 of the CPA. The Plointiff is estopped from seeking Io enforce ihe lerms of on involid so/e ogreement by Seclion ll4 of the Evidence Act. The Judgment in the criminol Courl is wilhouf doubt o relevont focl in issue in ihe inslont cose. There wos no oppeol ogoinst if, it stonds ond operotes os o bor to this suit os o subsequenl proceeding in court.

- 'I g. Counsel olso submitted thot the I't ond 4th Respondents initioted ond testified os PWI ond PW2 respectively in Criminol Cose No. 1389/2016. Thot the judgement wos delivered to the effect thot ihe Applicont neither forged nor uttered the decrees ond never porticipoted in the froudulent ocquisition of o certificote of lille in Block 272 Plol 35. Thol the Respondents hove never oppeoled the soid judgement to dote. - 20. Counsel submitted furiher thot the Chief Mogistrotes Courl ot Mokindye olreody foced the some issues which ore to be resolved in the heod suit. He odded thot from the Ploint, the Respondents wont this court to delermine similor issues os it wos in Criminol Cose No. 1389/2016' He odded thot this court connot entertoin the some issues ogoinst the some opponent if it is not on oppeol. Thol the suil omounts to on obuse of court process os wos estoblished in ihe Nigerion cose of R-Benkoy Nigerio Ltd Vs Codbury Nigerion PtC SC 29 ol 2006 which out lined circumstonces which give rise to obuse of court process, thot is; - o. lnstituting multiplicity of octions on some subject motter ogoinst the some opponent on the some issues or o mulliplicity of oclions on the some motter between the some porlies where there exists o right to begin the oction.


- b. Instituting different actions between the same parties simultaneously in different court even though on different grounds. - c. Where two similar processes are used in respect of the exercise of the same right for example a cross appeal and the respondents' notice. - d. Where an application for adjournment is sought by a party to an action to bring an application to court for leave to raise issues of fact already decided by a lower court. - e. Where there is no law supporting a court process or where it is premised on frivolity and recklessness. - f. Where a party has adopted the system of forum shopping in the enforcement of a conceived right. - a. Where two actions are commenced, the $2^nd$ asking for a relief which may have been obtained in the first. In that case, the 2^nd action is primafacie, vexatious and an abuse of court process. - 21. In reply, the Respondents' counsel submitted that the determination of a criminal case or civil case on the same fact/transaction is not a bar for commencement or continuing either of them since the burden and standard of proof, and remedies are different. He relied on Joseph Zagyenda vs Uganda HCR-0O-CR-CM 003 of 2011 where the trial judge relied on the case of Esso Standard (U) LTD Vs Nabudere HCCS No. 594 of 1990 and reiterated that:

...why should plaintiff 's legal rights be pegged on the speed with which the police carry on their inquiries when the plaintiff is the person that was hurt most, and more especially, when the judgment in the civil suit has no weight to be attached to by the court sitting in a criminal trial? The judgment in civil suit cannot influence the judgment in the criminal case as the prosecution in the criminal trial must pursue its case, against the accused beyond reasonable doubt.... while in civil case the proof by a plaintiff is on preponderance of probabilities......

- 22. The same Court held further that, "there is a clear distinction between civil and criminal actions. The civil proceedings determine the civil litigants' civil claims or liabilities and the standard of proof is on balance of probabilities." - 23. Counsel submitted further that, the facts in the case of Core Woods Limited Vs Senyonga Mohammed Mulenda (supra) are distinguishable from those in the present case since court did not pronounce itself on whether every decision in a criminal case bars a subsequent civil suit on the same facts.

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He added that a complainant in a criminal case is free to seek remedies from the civil court in the event that the remedies sought were not obtained in the criminal court.

## **Resolution**

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- 24. This application was brought under Section 5 of the Civil Procedure Act which provides that "any court shall, subject to the provisions herein" contained, have jurisdiction to try all suits of a civil nature excepting suits of which its cognisance is either expressly or impliedly barred". Under **Section** 2 (b) of the same Act, a 'court' means, 'any court exercising civil jurisdiction'. - 25. What is deducible from the above provisions is that for a party to rely on a judgement to bar subsequent suits, the judgement must have come from a competent court exercising civil jurisdiction. This is not the same concerning the facts before me now. - 26. Further, the judgment of the lower court in a criminal trial indicates that judicial documents were indeed forged. However, the evidence before court was insufficient to attribute the forgery to Applicant (See. Page 3 of the judgment). To this extent, it is recalled that the standard of proof in criminal matters is beyond reasonable doubt, as rightly expressed by the Respondents' Counsel. That is unlike the standard of proof at which the Respondents' will be required to prove their case in HCCS No. 208/2022; the standard of proof in that case will be on a balance of probability applied in ordinary civil cases but not beyond reasonable doubt as it was required in Criminal Case No. 1389/2016 (See. Kampala Bottlers Limited v. Damanico (U) Limited, S. C. Civil appeal No. 22 of 1992). - 27. Besides the distinction in the standard of proof, civil and criminal trial differ in the purpose, as the aim at purnishing offenders while the former aim at offering remedies to parties whose rights are affected. There is nothing that bars either of them from taking course concurrently or consecutively in order to achieve their intended purposes. For instance, in **Bumbakali Vs** Muhairwe & Ors, HCCS No. 36 of 1999) Justice Flavian Zeija pointed out that, "evidence of a conviction in a criminal matter can be used in a civil matter". Similarly, in Joseph Zagyenda Vs Uganda (supra), it was pointed out that, judicial efficiency will best be promoted by the expeditious disposal of both the criminal and civil proceedings.

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28.1 agree with the Respondents' Counsel that the facts in the case of **Core** Woods Limited Vs Senyonga Mohammed Mulenda (supra), are distinguishable from those before me. In that case, the court dealt with a situation where parties to an agreement of sale of land had been restored to their original positions under a criminal case, and the subject matter for the suit had already been transferred to third parties as a result of that. Justice Bashaija rightly observed that:

...the orders sought if granted would soon run into difficulties. The plaintiff was refunded back its money that the 1^st Defendant had fraudulently obtained. Therefore, a declaration that the plaintiff is the legal owner of the suit land for which the plaintiff has not paid any consideration would be premised on erroneous grounds since each party was restored to their former position...the judgement in the criminal court is without doubt a relevant fact in issue in the instant case.

- 29. In that case, the court's reasoning that the judgment in the criminal case was a bar to subsequent suits was based on the fact that there was no binding agreement and the suit land was no longer available for adjudication. Therefore, the suit was moot. - 30. In view of the above observations, I find that whereas the prosecution of the Applicant in a criminal trial and the resulting judgement may be piece of evidence in a civil trial, it is not a bar to the institution of a civil suit. Accordingly, the first issue is found in the negative. - 31. Issue 2. Whether Civil Suit No. 159/ suit No. 208 of 2022 is time barred?

Counsel for the Applicant submitted that the late Abraham P. N. Waligo died in 2000; and that the Respondents as beneficiaries ought to have taken charge of the suit land since then. That the first transfer was executed in 2008 and thus the time to commence the suit but, the Respondents have waited for 14 years to file the suit. Consequently, that is beyond the 12-years period provided for under Section 5 of the Limitations Act hence making the suit time barred.

32. In reply, Counsel for the Respondents based his submissions on **Patrick** Lyamulenye Vs Stephen Kwiringira & 3 Ors HCCS No. 118 of 2019, and Section 25 (a) of the Limitation Act, which provides that, "...the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, or could with reasonable diligence have discovered it". He

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argued that a cause of action for the Respondents, as Administrators, began to run from the time they were granted Letters of Administration in respect of the estate thus, 16/12/2020 and that a suit premised on an illegality as a cause of action is not limited.

- 33. Section 5 of the Limitations Act bars actions for recovery of land by any person brought after expiry of 12 years from the date on which the right to action accrued to him or her or, if it first accrued to some person through whom he or she claims, to that person. The exception to that is under Section 25(a) of the Limitation Act, as rightly submitted by the Respondents' Counsel. - 34. According to the amended plaint, it is alleged, under paragraph 7 (h) and (n), that the late Abraham Pellew died in March 2000, and that the 1st and 2^nd Defendants, in connivance with other defendants, forged and back dated a decree of the Chief Magistrates Court and the High Court; and in 2008, fraudulently created a special certificate of title of land comprised in Kyadondo Block 272 plot 35 at Mutungo. That subsequently, the 1^st and 2^nd Defendants got registered on a certificate of title using the forged decree. - 35. The above statement implies that the cause of action arose when the suit land was transferred to the 1^st and 2^nd Defendants, which is ideally more than 12 years. However, the plaintiffs raised an exception under paragraphs (I), (m) and (dd) of the plaint, by pleading that they discovered the fraudulent acts or illegalities in early October 2014. - 36. From the above, I find that the exception under Section 25(a) of the Limitation Act about postponement of the limitation period in cases of fraud applies in this case. Accordingly, the cause of action arose in 2014 after the alleged discovery of the fraud. In conclusion, the Respondents' suit is not time barred. This answers the second issue in the negative. - 37. In the result, the application is dismissed with costs. $15+$

Signed, dated and delivered at Kampala this....................................

Nabakooza Flavia. K Judge

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