Mutaasa Asoni v Alozio Sejjange (Civil Suit No.0018 of 2003) [2003] UGHC 18 (29 October 2003)

The plaintiff, Asoni Mutaasa sued the defendant Alozio Sejjange for damages arising from a kibanja trespass. The plaintiff told court that he acquired a kibanja measuring about 60 acres from the landlord Kisitu in around 1968. That he paid Busulu for the kibanja and planted Ndagi trees, misambya trees coffee and banana plantation in the kibanja. He even built his house thereon. The plaintiff contended that later in around 1970, the defendant bought land comprised on Block No. 397 Plot 28 (Singo-Mubende District). That this year, the defendant without any colour of right trespassed and grabbed part of the plaintiff’s kibanja. That he enclosed it with a barbed wire fence and he refused the plaintiff’s son Kasumba Fadul to cultivate the kibanja. Matters were then referred to this court and the Busulu tickets upon which the plaintiff paid Busulu to Kisitu were tendered as exhibit P.1. The plaintiff called three witnesses namely James Serwadda (PW2), Robert, Kasumba Fadul (PW3) and Emanuel Sirikale (PW4).

As for the defendant, he defended that the plaintiff had no locus to institute this case against him. That the defendant was a landlord vide title deed block 397 plot 28 and that his land was adjacent to that of Kisitu where plaintiff’s kibanja is situate. He defended that the plaintiff is not at all a tenant on his land and that the land he enclosed was his, as he wanted to restrain plaintiff’s son Kasumba Fadhul (PW3) from committing further trespass. Defendant finally defended, that the same case was substantially in issues vide Civil Suit No. 0009/2003 and that he won the above civil action where plaintiff’s son Kasumba was the defendant. He tendered the title certificate of Block 397 Plot 28 as exhibit D1 and he prayed that case be dismissed for being Res judicata. He called no witnesses.

I have carefully looked at the proceedings and all evidence in this case.

The same subject matter was handled in Civil Suit No. 0009 of 2003. The plaintiff in that case was the present defendant against Kasumba Fadhul. Judgment in that case was entered ex-parte against Kasumba Fadhul who refused to enter appearance under rule 21 of Magistrates’ Court Act 1970. Under the provisions of sections 222 of the Magistrates’ Court Act 1970, this suit was already substantially in issue according to the above suit. The present plaintiff’s son (Kasumba Fadhul) who was the defendant in that cause should have lodged an application for setting aside the ex-parte judgment under Rule 21 of Magistrates’ Court Act 1970 other than his father (plaintiff) opening up fresh civil action against the defendant. He had no locus to do so. This file shall accordingly be dismissed for being res judicata and with costs against the plaintiff. Orders accordingly.

Uganda: High Court

Mutaasa Asoni v Alozio Sejjange (Civil Suit No.0018 of 2003) [2003] UGHC 18 (29 October 2003)