THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

HOLDEN AT MBALE

HCT-04-CV-CA- 0143 OF 2014

(ARISING FROM TORORO LAND SUIT NO. 158/2012)

JOHN MADANGOL LEO  ::::::::::::::::::::::::::::::                       APPELLANT

VERSUS

OKANYANGA SAM                       :::::::::::::::::::::::::::::::         RESPONDENT

BEFORE: HON. JUSTICE HENRY I. KAWESA

JUDGMENT

This is an appeal from the decision of the Chief Magistrate’s Court of Tororo presided over by His Lordship Simon Ocen Magistrate Grade One delivered on 02.07.2014 wherein the appellant’s suit was dismissed on ground that it was barred by res judicata.

The facts leading to this appeal are that the appellant filed civil suit No. 158 of 2012, against the defendant/respondent in the Chief Magistrate’s Court of Tororo claiming that the respondent had trespassed on his land known as Plot 127 Nyangole Zone A, Eastern Division, Tororo Municipal Council, Tororo District and erected a structure thereon.

The plaintiff claimed he bought this land on 21.04.1970 from a one Waguti Asilieng at a sum of shs. 800 and stayed thereon undisturbed until 2011 when the respondent trespassed and encroached on his land.

In his defence, the defendant denied the plaintiff’s allegations and stated that he was the rightful owner of the disputed land having bought the same from a one Martin Kiggundu in 2009.

At the hearing of the matter, counsel for the Respondent raised a preliminary objection that the suit in question was barred by res judicata having been determined in 1996 in Civil Suit No. MT. 49 of 1996, Martin Kiggundu and 3 Others vs. Leo Madangol which was concluded in favour of Martin Kigundu who sold the land to the respondent in this matter.

Having raised the objection, the trial Magistrate saw it necessary to visit locus wherein locus visit was conducted, all the people present testified that the land in question belonged to the family of Martin Kigundu who had been their neighbor until 2009 when he sold it to the respondent and migrated to another area.

After considering the evidence on record, the trial Magistrate ruled that the preliminary objection raised an important point of law which disposed off this suit, that is that the appellant’s suit was bad in law as it was barred by res judicata.

Hence the appellant being dissatisfied with the decision of the trial court appealed to this honourable court on the following grounds:

1. The trial Magistrate erred in his ruling by relying on counsel Okuku’s withdrawal from the case alleging res judicata.
2. That the trial Magistrate erred in law in his observations at the locus in quo, when he relied on evidence of the people present who had bias against the appellant.

Determination of grounds:

This being a first appellate court, it has the duty to re-appraise/re-evaluate the evidence on record and come to its own conclusion.

See Fr. Nasensio Begumisa & 3 Others vs. Eric Tibebaga SCCA No. 17/2002.

Ground one- Res judicata (combines grounds 1, 3, 4 and 5)

Res judicata is dealt with under Section 7 of the Civil Procedure Act Cap.71.  Section 7 is to the effect that:

“No court shall try any suit or issue in which the matter directly and subsequently in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigation under the same title in a court competent to try the subsequent suit and the suit in which the issue has been subsequently raised and has been heard and finally described by that court.”

In the case of Maniraguha Gashumba vs. Sam Nkundye CACA No. 23 of 2005, court noted that for res judicata to arise, the matter must have been in issue in the former suit, parties were the same or their representatives in the former suit, the matter must have been heard and finally decided by a court of competent jurisdiction.

In Green v. Weatherill (1929/2) Ch. 213 court noted that a judgment passed by a court binds the plaintiff, the defendant and the executor, administrator or assignee of  each of them and all persons claiming through or under them.

Additionally, in H. Ochanya vs. Peter Ogwang (1976) HCB 33, Allen J noted that if no appeal is filed against a decision where a right of appeal is available then the parties are bound by the decision and the passage of any number of years will not change the position.

The courts have gone ahead to set out the test of determining whether a case is barred by the principle of res judicata.

In Posiyano Semakula vs. Susan Magala and Others (1979) HCB 89 quoted with approval in the case of John Kafeero Sentogo vs. Shell (U) Limited and Uganda Petroleum Company Limited CACApp. No. 50 of 2003. Court noted thus:

“In determining whether or not a suit is barred by res judicata, the test is whether the plaintiff in the second suit is trying to bring before the court in another way in the form of a new cause of action, a transaction which has already been presented to a court of competent jurisdiction in earlier proceedings which have been adjudicated upon.”

Thus in this case before this Honourable court, all the ingredients of res judicata do exist.  It is clearly stated that in 1996, the appellant was involved in a civil suit with a one Martin Kigundu in civil Suit No. MT 49 of 1996, Martin Kigundu and 3 Others vs. Leo Madangol which was concluded in favour of Kigundu.  In here, the appellant was involved.  The disputed land in this suit was Plot Bo. 127 Nyangole Zone A, Eastern Division, Tororo Municipal Council, Tororo District which is the same land subject of the dispute in Civil Suit 15/2012.  Thus at this stage, this suit is barred by res judicata because the matter in question was already determined by a court of competent jurisdiction.

However, considering the case of Ponsiano Semakula vs. Susane Magala & Others (1993) KALR 213, the Supreme Court held that:

“The court before which the issue of res judicata is raised must peruse the judgment of the court in the first suit and ascertain that the judgment exhaustively dealt with the issues raised in that case and if possible the court should peruse the whole court record so that it gets the opportunity to appraise itself of all matters raised in the earlier suit in order to decide whether the plea of res judicata succeeds or not.”

There is no proof in this suit that the trial Magistrate perused the judgment referred to of 1996.  He only ordered a locus visit of the disputed land, thus the Magistrate didn’t follow the principle in Semakula (supra).

However, there is evidence on record on page 1 of the ruling where the Magistrate states that Mr. Okuku who represented Kiggundu in the 1996 case and was representing the appellant in this case averred that:

“He was in a terrible position and he would be embarrassed by Kiggundu if he came because he successfully represented him in the case against the plaintiff/appellant and for that reason he withdrew from representing the plaintiff/appellant in this case.”

The Plaintiff himself doesn’t deny that he had a case which he lost against Kiggundu in 1996.  See the record of proceedings and page 1 of the ruling.  Therefore, all this points to res judicata.  This ground of appeal fails and is dismissed.

Ground 2: Trial Magistrate erred in law in his observations at locus visit, whereby he relied on evidence of biased people present.

In David Acar and 3 Others vs. Alfred Acar Aliro (1982)HCB 60, Karokora J noted that:

“When the court deems it necessary to visit locus in quo, then both parties and their witnesses and counsel (if any) must be involved.  Any observations by the trial Magistrate must be recorded down and must form part of the proceedings……”

According to his ruling the trial Magistrate states that on 12th day of June 2014, the court visited locus in quo with both parties present, they were able to identify the boundaries of the suit land and each gave brief testimony to that fact on page 2 paragraph 1 of the ruling, the trial Magistrate clearly states that at the locus in quo, he made his own observations.

The Magistrate observed that Plot 127A was within block 127 which was the subject of dispute between Martin Kiggundu and the plaintiff/appellant in civil suit 49/1996.

There was overwhelming support by the neighbours and the LC.I Chairman who confirmed that Plot 127 A belonged to Kiggundu and that it is where he used to reside with his family until when he migrated and sold the land to the defendant/respondent.  There was rubble of a house and mature boundary marks of birowa, demarcating the suit land from that of the neighbor, Jeff Alanga which the plaintiff sold to him.  There was no evidence to show that the plaintiff is in possession of the suit land because it was in possession of the defendant who had even fenced it off.

Thus considering all the above, I find that the trial Magistrate correctly carried out the visit to the locus and there was no bias whatsoever exhibited from the evidence.  This ground also fails.

Thus in a nutshell, the appeal should be dismissed with costs to the respondent, and the decision of the trial court upheld.

Appeal is accordingly dismissed with costs to Respondents.  I so order.

Henry I. Kawesa

JUDGE

24.11.2015

Right of appeal explained.