Masereka and 3 Others v Mbuiraghe and Another (Civil Suit 20 of 2017) [2023] UGHCCD 257 (30 June 2023)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT FORT PORTAL

CIVIL SUIT NO. 20 OF 2017

1. ELEAZER MASEREKA

2. JONAS THEMBO

3. SURGEON BWAMBALE

4. AUGUSTINE MASEREKA :::::::::::::::::::::::::::::: PLAINTIFFS

VERSUS

1. AUGUSTINE MBUIRAGHE

2. AFRICA EMS NYAMWAMBA LTD :::::::::::::::: DEFENDANTS BEFORE: HON. JUSTICE VINCENT WAGONA

RULING

Introduction:

1. This ruling is in respect of preliminary objections based on points of law raised on behalf of the 2nd defendant contending that the suit is *res-judicata* and is barred by law under the principle of a judgment in rem.

Background:

2. The plaintiffs sued the defendants jointly and severally in Tort, Equity, Succession Law and land law seeking among other orders a declaration that the 1 st defendant is not the beneficiary of the family land which his father was involved in defending


Representation and Hearing:

3. *Mr. Tumusiime Ishmael of M/s Shonubi, Musoke& Co. Advocates* appeared for the 2nd defendant while *Mr. Atuheire of M/s Atuheire & Co, Advocates* appeared for the plaintiffs. Parties were directed to file written submissions and only the counsel for the 2 nd defendant complied.

Whether the plaintiffs' suit is res-judicata

- 4. The preliminary objection arises from the pleadings whereby n the amended plaint filed on 28th August 2017, the plaintiffs in paragraph 4 (a) averred that: *"… the same family, had entrusted their inherited family land to one Mukusi Bwambale who before he died had given permission to one Biregho to temporarily make use of his family land….. after Mukusi's death, this Biregho tried to unlawfully seize and alienate the suit land"* That plaintiffs also averred that after the family convened and delegated authority to a family ender, one Kalekene Muhindo (1st defendant's father) to pursue on behalf of the family a civil suit for the preservation and protection of the said land. That in the same paragraph they acknowledged thus; *"The said Kalekene successfully obtaining a judgment to which his son – the first defendant has made frequent reference:* - 5. It was thus contended that suit was *res-judicata* citing Section 7 of the Civil Procedure Act and the decision of Justice Stephen Mubiru in Onzira Elizabeth Vs. Shaban Fadule, Civil Appeal No. 19 of 2013. That: (a) there is a former suit over the same subject matter; (b) the parties in the former suit and in the current suit are the same or claim title from those who were parties to the


former suit; (c)that there is a decision arrived at on merits that determines the suit between the parties.

6. That in this case there exists a former suit that is Civil Appeal No. 5 of 2008 over the same subject matter; hat the parties in the former suit and in the current suit claim interest in those were parties to the former suit. That in Civil Appeal No. 5 of 2008, the late Kalekene was declared the owner of the suit land. That the current suit is about ownership of the suit land which issue was resolved in Civil Appeal No. 5 of 2008. That from the perusal of the judgment of court, there is no indication that the respondent (Kalekene Muhindo), the 1st defendant's father was acting on behalf of any other person save himself.

CONSIDERATION BY COURT:

- (i) Whether this suit is res-judicata: - 7. The Black's law Dictionary 10th Edition defines "res judicata*"* as *"An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privy with the original parties…"* - 8. Section 7 of the Civil Procedure Rules provides thus: *"No court shall try any suit or issue in which the matter directly and substantially 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, litigating under*


*the same title, in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised, and has been heard and finally decided by that court."*

- 9. Section 7 of the Civil Procedure Act was given judicial consideration in *Ponsiano Semakula Vs. SusaneMagala& others (1993) KALR 213* where it was observed thus: *"The doctrine of res-judicata, embodied in S.7 of the Civil Procedure Act, is a fundament doctrine of all courts that there must be an end of litigation. The spirit of the doctrine succinctly expressed in the well-known maxim: 'nemo debt bisvexari pro una et eada causa' (No one should be vexed twice for the same cause). Justice requires that every matter should be once fairly tried and having been tried once, all litigation about it should be concluded forever between the parties. The test whether or not a suit is barred by res-judicata appears to be that the plaintiff in the second suit trying to bring before the court in another way and in the form of a new cause of action, a transaction which he has already put before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon. If so, the plea of res-judicata applied not only to points upon which the first court was actually required to adjudicate but to every point which properly belongs to the subject of litigation and which the parties, exercising reasonable diligence might have brought forward at the time".* - 10.The issue of res-judicata was considered by the Supreme Court in Karia and Anor Vs. Attorney General & others (2005) 1 E. A 83 and Mansukhal RamjiKaria & Anor Vs. Attorney General & others, Supreme Court Civil Appeal No. 20 of 2002 where in both cases court noted that for res-judicata to


arise, the following must be satisfied thus: (a) *There has to be a former suit or issue decided by a competent court; (b) The matter in dispute in the former suit between the same parties must also be directly or substantially in dispute between the parties in the suit where the doctrine of res-judicata is pleaded as a bar; (c) The parties in the former suit should be the same parties or parties under whom they or any of them claim litigating under the same title.*

- 11.*Mubiru J in Onzia Elizabeth Vs. Shaban Fadul & Anor, Civil Appeal No. 0019 of 2013* observed at page 5 in relation to proof of resjudicata thus: *".. Undoubtedly the burden of proving res judicata was on the Respondent. It is not a pure question of law which could be resolved on the basis of the submissions of counsel alone. The court below was to determine the issue by consideration of the relevant record of proceedings and hearing extrinsic evidence in relation thereto'.* The Judge further noted citing the decision of Karia (supra) that the proper practice is for the trial court to try that issue and receive some evidence to establish that the subject matter has been litigated upon between the same parties or parties through whom they claim. - 12. Whether there is a former suit or issue decided by a competent court. I was contended for 2 nd defendant that there is a former suit which was determined by this very court - Civil Appeal No. 005 of 2008. I have perused the record in this suit and found a judgment of Justice Mike J. Chibita in Civil Appeal No. 005 of 2008, Bahati Biregho Vs. Kalekene Muhindo. The case was heard and determined on merits the court having declared the respondent (Kalekene


Muhindo), the rightful owner of the suit land. Therefore, there is proof of a former suit decided by a competent court.

- 13.The matter in dispute in the former suit between the same parties must also be directly or substantially in dispute between the parties in the suit where the doctrine of res-judicata is pleaded as a bar; and the parties in the former suit should be the same parties or parties under whom they or any of them claim litigating under the same title. - 14.I have considered the judgment in civil appeal No. 005 of 2008 and the plaint in this suit. The plaintiffs were not parties in the former suit. The plaintiffs contend in the current suit that the land formerly constituted family land and had authorized the late Kalekene Muhindo (1st defendant's father) to file a suit to secure the same which he did and he obtained a judgment in civil appeal No. 005 of 2008; that the 1 st defendant together with the 2nd defendant are using the judgment to deny them their entitlements or interests in the suit land. The issue in Civil Appeal No. 005 of 2008 was ownership of the suit land between the late Kalekene Muhindo (father to the 1st defendant) and Bahati Biregho and resulting from the same, court declared Kalekene the owner of the suit land. In the former suit, the question as to whether the suit land was family land where the plaintiffs were entitled to a share was not tried by court. - 15.Secondly, Civil Appeal No. 008 of 2008 is not informative enough regarding the capacity under which the late Kalekene originated the suit which was appealed against. It is not demonstrated by some evidence how the parties in the current suit and those in the former suit are the same or claim interest from

 those who were parties in the former suit. The court is not satisfied that it has been established that this suit is res-judicata. The preliminary objection raised on this basis therefore fails and it is overruled.

(ii). Whether the suit is barred under the principle of a judgment in rem:

- 16.It was contended that the judgment of court in Civil Appeal No. 005 of 2008 is a judgment in rem which binds all persons even when they were not parties thereto. Counsel cited the case of Geroge William Katerega Vs. Commissioner land Registration & others, Misc. Application No. 347 of 2015 where it was stated that: *"A judgment in rem invariably denotes the status or condition of property and operates directly on the property itself. It is a judgment that affects not only the thing but also persons interested in the thing; as opposed to judgment in personam which only imposes personal liability."* - 17.Learned counsel also cited the decision of Saroji Gandesha Vs. Transroad Ltd which cited the decision in Nicholas Marteemns & others Vs. South African National Parks, Case No. 0117 where it was observed that: *"a judgment in rem binds all person even when they are not parties to the proceedings and are stopped from averring that the status of persons, things or the right to title to property are other than what the court has by its judgment declared it to be. Similarly, since in the instant case, the judgment in Civil Suit No. 85 of 2005 amounted to a judgment in rem, logically it was binding as against all parties to the suit and third parties including the*


*applicant and conclusive as against the whole world that the entities ordered as affected by order of court were so entitled or disentitled as the case may be, regardless of whether they were parties to the suit or not"*

- 18.It was thus argued that the judgment of this court in Civil Appeal No. 05 of 2008 is a judgment in rem which is binding on the whole world including the plaintiffs even when they were not parties to it. That there is no evidence in the judgment in Civil Appeal No. 5 of 2008 that suggests that the respondent was acting on behalf of any person but for himself. He thus asked court to uphold this point of law and be pleased to dismiss this suit under Order 6 rule 29 of the Civil Procedure Rules. - 19.The Black's Law Dictionary, 9th Edition defines a judgment in rem as:*"An action in rem is one in which the judgment of the Court determines the title to the property and the rights of the parties, not merely as between themselves, but also as against all persons at any time dealing with them or with the property upon which the court had adjudicated."* - 20.A judgment in rem is a "*judgment which declares, defines or otherwise determines the status of a person or of a thing ie, the jural relation of the person or thing for the world generally*;" See *Japheth Nzila Muangi Vs Kenya Safari Lodges and Hotels Ltd [2008] e KLR.* It is a judgment which is conclusive not to only against the parties to it but also against the world. - 21.The effect of a judgment in rem was held in *SAROJI GANDESHA VS TRANSROAD LTD S. C. C. A NO. 13 OF 2009* as to bind all persons even when


they are not parties to the proceedings and are stopped from averring that the status of persons or things or the right to title to property are other than what the court has by its judgment declared.

- 22.To expound further, a decision in rem was discussed in *Kamunyu & Others v Attorney General & Others (2007) 1 EA 116* as follows: *"In a suit seeking judgment in rem, that is a judgment applicable to the whole world, an individual does not sue on behalf of the whole world, but sues for judgment which is effective against the whole world. In other words, in the present case, the appellants when successful in the suit obtain judgment, which is effective against the whole world but does not confer benefits upon the whole world."* - 23.Bashaija J in *George William Katerega Vs. Commissioner for Land Registration & 12 others, Misc. Application No. 347 of 2013* gave the legal effect of a judgment in rem thus: *"The effect of a judgment in rem is well articulated in the Saroji Gandesha v Transroad Ltd case (supra). Citing the South African case of Nicholas Francois Marteemns & Others v. South African National Parks, Case No. 0117 the Supreme Court of Uganda held that a judgment in rem binds all person even when they are not parties to the proceedings and are stopped from averring that the status of persons or things, or the right to title to property are other than what the court has by its judgment declared it to be. Similarly, in the instant case, since the judgment in Civil Suit N*o. 85 *of 2005 amounted to a judgment in rem, logically it was binding as against all parties to the suit and third parties, including the*


*Applicant, and conclusive as against the whole world that the entities ordered as affected by order of court were so entitled or disentitled, as the case may be, regardless of whether they were parties to the suit or not."*

- 24.In this suit, the plaintiffs plead that they had in a family meeting authorized a one Kalekene Muhindo to file a claim on behalf of the family to protect the suit land. That he secured a judgment and thereafter, the 1st defendant is using the same to deny them their entitlements to the suit land. In my view the defendants do not contest the judgment of court in Civil Appeal No. 05 of 2008. Their claim is that after Kalekene Muhindo securing the suit land, they were entitled to benefit as family members. The plaintiffs contend that the suit land was their family land and they had instructed Kalekene Muhindo to go to court to protect the family land. I believe a full trial is necessary to hear the case on merits so that court can ascertain the truth and validity of the plaintiffs' claim. - 25.I find that whereas there is a judgment declaring the 1st respondent as the owner, the doctrine of judgment in rem is not applicable. The preliminary objection raised on this basis also fails.

26. It is ordered as follows:

- 1. Both preliminary objections on points of law are hereby overruled. - 2. Each party shall bear own costs.


3. The parties are directed to complete all their filings in terms of Joint Scheduling Memorandum, Witness Statements and Trial bundles by 18.8.2023 and the case is hereby fixed for mention on that same day.

It is so ordered.


Vincent Wagona

High Court Judge / FORT-PORTAL

Dated at Fortportal this 30th day of June 2023