Court name
HC: Land Division (Uganda)
Judgment date
12 February 2021

Nkalubo v Mukoome (Civil Appeal-2019/162) [2021] UGHCLD 6 (12 February 2021);

Cite this case
[2021] UGHCLD 6
Coram
Kawesa, J

THE REPUBLIC OF UGANDA

IN THE HIGH CORUT OF UGANDA AT KAMPALA

LAND DIVISION

CIVIL APPEAL NO.0162 OF 2019

ARISING FROM CIVIL SUIT NO.003 OF 2016 OF CHIEF MAGISTRATES COURT OF KAJJANSI AT KAJJANSI

 

  1. AUGUSTINE NKALUBO
  2. MRS NKALUBO::::::::::::::::::::::::::::::::::::::::APPELLANTS

VERSUS

ABRAHAM KIYITI MUKOOME:::::::::::::::::::::::::::::::::::::::::: RESPONDENT

JUDGMENT

BEFORE:      HON. MR. JUSTICE HENRY I. KAWESA

This appeal arises from the judgment of Her Worship Christine Nantege, a Grade One Magistrate, sitting at the Chief Magistrate’s Court of Kajjansi at Kajjansi wherein she adJudged in favour of the Respondent.

The brief background of the appeal is that: the Respondent sued the Appellants for a declaration that;-

  1.  They are trespassers on an access road to his land comprised in Busiro Block 383 Plot 9512 at Kitende (hereinafter the suit land),

 

  1.  A declaration that they have no interest in the said access road, among others.

 

It was his allegation that he lawfully purchased the suit land, measuring 0.811 hectares, from its former owner, a one Kiryowa Micheal; and that it, at the time, had a well demarcated access road, but the Appellants, without any claim of right, blocked it by planting banana plantations and digging holes thereon.

 

The Appellants’ denied this allegation by contending that the suit land is part of land formerly comprised in plot 3890 forming part of the estate of the late Kiwanuka Sewanyana Yowana, which is a subject of Civil Suit No.180 of 2010.

 

Upon determination of the suit, the trial Magistrate found that the certificate of title of the suit land, on which the Respondent is registered as proprietor, bore an access road.  She also found that the Appellants blocked the same as alleged by the Respondent and found them liable for trespass.  The Appellant being dissatisfied with the finding, the Appellant appealed to Court on the following grounds:

  1. The learned trial Magistrate erred in law and fact when she entertained Civil Suit No.033 of 2016 which was above her pecuniary jurisdiction.

 

  1. The learned trial Magistrate erred in law and fact when she declined to stay proceedings in Civil Suit No.003 of 2016 pending the determination of Nakawa High Court No.180 of 2010 currently High Court Civil Suit No.298 of 2017 Family Division and H.C.C.S No.523 of 2016 land Division hence making orders contrary to the orders already made by the High Court.

 

  1. The learned trial Magistrate erred in law and fact when she failed to evaluate evidence on the record thus coming to a wrong conclusion that the Appellants were trespassers on the suit land.

 

  1. The learned trial Magistrate erred in law and fact when she declared the Respondent to be the lawful owner of the suit access road when she ignored the Appellant’s pleadings and evidence both in Court and at locus in quo which indicated that the Appellants were the lawful owners and the ones in possession of the suit land where the Respondent claims to own an access road which has physically never existed on the suit land.

 

  1. The learned trial Magistrate erred and misdirected herself when she held that at visiting locus there was an eroded access road due to the 1st Appellant’s activities whereas the said access road has physically never been in existence on the land as reflected on the deed plan of the Respondent’s certificate of title and thereby coming to a wrong conclusion that there is an access road on the suit land.

Counsel for both parties filed written submissions, which I have considered but shall not reproduce.  In determining the above grounds, I shall 3, 4, and 5 together because they are related.

Counsel for both parties ably noted that this Court has a duty to reappraise the evidence on record and come up with its own conclusions bearing in mind the fact that it did not have the opportunity to observe the demeanor of the witnesses.  They both cited Active Automobile Spares Ltd versus Crane Bank & Another S.C.C.A. No.21 of 2001, and Belex Tours & Travel Ltd versus Crane Bank Ltd & Anor Civil Appeal No.071 of 2009.

 

Ground One:

The learned trial Magistrate erred in law and fact when she entertained Civil Suit No.033 of 2016 which was above her pecuniary jurisdiction.

According to Section 207(1) (b) of the Magistrate Courts Act Cap 16, as amended, a Grade one Magistrate has jurisdiction where the “value of the subject matter” does not exceed Ugshs.20, 000,000/- (twenty million shillings). The subject matter is defined as “the issue presented for consideration; the thing in which a right or duty has been asserted; the thing in dispute.” (8th Edn. of Black’s Law Dictionary at 4470).

Pecuniary jurisdiction.

 

I have ably perused the plaint of the aforesaid suit and appreciated that the issue presented for consideration was trespass to an access road situated on the suit land. This in my view, was the subject matter of the suit, not the ownership of the suit land as the Appellant appears to instigate.  No pecuniary value of this was stated in the plaint, and it would be erroneous and over assuming to hold that it exceeded Ugshs.20, 000,000/-.

According to Bashaija J., in Musisi Gabriel versus Edco Ltd & Anor H.C.C.A. No.52 of 2010, Court stated that;

Not….even possible to put a pecuniary value on a cause of action founded in trespass.

The learned Judge reached this view after considering similar observations of Court in Munobwa Muhammed versus Uganda Muslim Supreme Council H.C.C. Rev. No.01 of 2006, that a Grade One Magistrate was competent to entertain a suit for trespass and that was not necessary for purposes of jurisdiction for the Plaintiff to estimate the value of the subject matter of the suit.  Since the subject matter of the suit was premised on trespass and no pecuniary value was fixed in the plaint, I find that the trial Court had jurisdiction to handle the matter.  Accordingly, this ground fails.

Ground Two:

The learned trail Magistrate erred in law and fact when she declined to stay proceedings in Civil Suit No.003 of 2016 pending the determination of Nakawa High Court No.180 of 2010 currently High Court Civil Suit No.298 of 2017 Family Division and H.C.C.S No.523 of 2016 Land Division hence making orders contrary to the orders already made by the High Court.

The Appellants’ Counsel ably submitted that the trial Magistrate ought to have stayed proceedings before her in Civil Suit No.03 of 2016, pending the hearing and determination of H.C.C.S. No.298 of 2017 (the 1st Appellant against Francis Sewanyana and Edward Kiwanuka) and H.C.C.S No.523 of 2016 (the 1st Appellant against Francis Sewanyana, Edward Kiwanuka, the Respondent herein, and others).

The subject matter of these suits is different from that in the suit which was before the lower Court, although they relate to the suit land.  The question now is: Was the trial Magistrate wrong not to stay the proceedings before her to await the outcome of the aforesaid suits?

The law on stay of proceedings is well espoused in O.39 r2 of Civil Procedure Rules.  I shall reproduce the same for ease of reference:

Where a Plaintiff has instituted two or more suits, and under the provisions of rule 3 of Order 1 of these Rules the several Defendants could properly have been joined as co-Defendants in one suit, the Court, if satisfied upon the application of a Defendant that the issues to be tried in the suit to which he or she is a party are precisely similar to the issues to be determined in another of the suits, may order that the suit to which the Defendant is a party be stayed until the other suit shall have been determined or shall have failed to be a real trial of the issues.

For a Defendant to be able to invoke the above provisions, he or she must apply and satisfy all the following elements:

  1. That the Plaintiff instituted more than one suit against several Defendants, including the applicant.

 

  1. That the Defendants could be properly joined in one suit.

 

  1. That the issues to be tried in the suit to which the applicant is a party are similar to the issues to be determined in another of the suits.

In this case, none of the above conditions was satisfied because the Respondent, who was the Plaintiff before, did not institute more than one suit against the Appellants.  As such, a stay under the above provisions could not be properly ordered.

 

I have not come across any other law in respect to stay of proceedings pending the completion of others, and Counsel did not also cite any.  This is an activity left to the discretion of the trial Court and each case is taken on its own facts.it is not mandatory for Court to have stayed the proceedings.

As such, I cannot fault the trial Court for failing to act to the Appellant’s call.  Accordingly, this ground fails also.

Ground 3, 4, and 5

  1. The learned trial Magistrate erred in law and fact when she failed to evaluate evidence on the record thus coming to a wrong conclusion that the Appellants were trespassers on the suit land.

 

  1. The learned trial Magistrate erred in law and fact when she declared the Respondent to be the lawful owner of the suit access road when she ignored the Appellant’s pleadings and evidence both in Court and at locus in quo which indicated that the Appellants were the lawful owners and the ones in possession of the suit land where the Respondent claims to own an access road which has physically never existed on the suit land.

 

  1. The learned trial Magistrate erred and misdirected herself when she held that at visiting locus, there was an eroded access road due to the 1st Appellant’s activities, whereas the said access road has physically never been in existence on the land, as land as reflected on the deed plan of the Respondent’s certificate of title and thereby coming to a wrong conclusion that there is an access road on the suit land.

 

The Respondent testified that at the time of acquiring the suit land, it had an access road marked with concrete poles.  That these were fixed by the former proprietor of the suit land, a one Kiryowa.  He also testified that the Appellants blocked the access road by planting bananas and digging thereon holes.  This evidence was corroborated by PW2, Lubega Abdul, and PW3, Kibongo Peter.

The Appellants did not dispute planting bananas and digging holes at the area the Respondent alleges his access road was, but  contended that there was no access road on the suit land and that the Respondent trespassed on the their land by attempting to create thereon one.

At locus, the trial Magistrate did not make note of the said access road as visible.  That notwithstanding, the trial Magistrate nevertheless found that there existed an access road on the suit land and that the Appellants trespassed thereon.  In doing so, she acted on the deed print of the suit land’s certificate of title, PEXH1, which indicates an access road thereon.

I took time to scrutinize the said deed print, and confirmed that it indeed reflects an access road along the suit land, and which resembles the one depicted on the sketch map taken by the trial Court at locus.  This deed print was created on the 19th of June, 2013, way before the dispute between the parties herein arose.

According to Section 34 of the Evidence Act Cap 6, statements of facts in issue or relevant facts, “made in maps or plans made under the authority of the Government, as to matters usually represented or stated in such maps, charts or plans, are themselves relevant facts.

In view of the above provision and the aforesaid observation, I am satisfied with the finding that there was and, is an access road along the suit land, though it is no longer physically visible.  It is also my finding that the land bordering the said access road is registered in the Respondent’s name.  This means that he is entitled to use the said access road in view of Section 60 of the Registration of Titles Act. It is my finding as per the evidence on record that the Appellants blocked the said access road.

It is my further finding that in doing so, they acted in trespass thereon.  In the result, I cannot fault the trial Magistrate for the finding she reached, which are the basis of Appellant’s grievances and arguments under grounds 3, 4, and 5. On account of my findings above, all these grounds do fail.

 Consequently, the trial Court’s judgment is upheld, and the appeal is dismissed with costs to the Respondent.

I so order.

 

………………………………

Henry I. Kawesa

JUDGE

12/02/2021.

 

 

12/02/2021:

Counsel Tomusange Abdul and Counsel Lutalo David for the Appellants.

Counsel Maitum Kirara holding brief for Ms. Annet Sabi for the Respondent.

Clerk:  Kanagwa Grace.

Court:

Judgment delivered today.

Sgd:

Flavia Nabakooza K.

DEPUTY REGISTRAR