Aisha Kiwanuka v Micro Finance Centre Ltd and Another (Civil Application No. 169 of 2014) [2014] UGCA 144 (25 June 2014)

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA

## AT KAMPALA

Civil Application No. 169 of 2014

| Aisha Kiwanuka- | | |-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-------------------| | | Applicant | | versus<br>1999년 - 1999년 1월 1999년<br>1990년 - 1990년 1월 1990년 1월 1990년 1월 1990년 1월 1990년 1월 1990년 1월 1990년 1월 1990년 1월 1990년 1월 1990년 1월 1990년 1월 19<br>1990년 1월 1990년 1월 1990년 1월 1990년 1월 1990년 1월 1990년 1월 1990년 1월 1990년 1월 1990년 1월 1990년 1 | | | Micro Finance Centre Ltd= | ==Respondent No.1 | | Imam Kiwanuka= | =Respondent No.2 |

CORAM: Honourable Lady Justice Solomy Balungi Bossa

his is annexture marked. Honourable Justice Professor L. E. Tibatemwa-Ekirikubinza eferred to in the annexed affida

ciaration of ..................................

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declared before me

Advocate & Comm

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Honourable Mr. Justice FMS Egonda-Ntende

## **RULING OF THE COURT**

1. Imam Kiwanuka, the respondent no.2, is the registered proprietor of the land and house on Plot No.210 Block 338 situate at Kawatule, Kyengera, Mugongo. He mortagaged this land on which he lives with his spouse, Aisha Kiwanuka, and children, to the Respondent No.1 as part of a transaction in which a loan was granted to a third party. The third party is in default with regard to repayment of the loan. The Respondent no.1 commenced steps to dispose of

this property to recover the outstanding sums of money to it.

2. The applicant then commenced an action in the High Court seeking to declare

the mortgage void on account of lack of spousal consent. The High Court found that the applicant was a wife of the mortgagor and that no spousal consent had in fact been obtained. Nevertheless given that this was the result of the fraud perpetrated by the respondent no.2, the husband of the applicant, the learned judge declined to declare the mortgage void. The applicant has preferred an appeal to this court and pending the hearing of that appeal she now seeks a temporary injunction to restrain the respondent no.1 from disposing of the said property. The main ground she advances is that her appeal would be rendered nugatory if the respondent disposed of this property in addition to inflicting irreparable loss upon her. The

- 3. The respondent no.1 has filed an affidavit in reply in which its Officer has attested that it is anxious to recover the outstanding sums by selling the said property without any further delay as delay is causing further loss to the respondent. - 4. It is clear therefore that unless the respondent no.1 is restrained it will continue with the sale of the said property. - 5. Mr Mugabi. Learned counsel for the respondent No.1, objects to this application on several grounds, the first of which is that there is no appeal before this court as the applicant had no automatic right of appeal. She needed to seek leave under as the decision of the High Court did not fall under Order 44 Rule 1 of the Civil Procedure Rules. The Mortgage Act did not create a right of appeal in respect of decisions made by the High Court under that Act. In the result he submitted that there is no proper appeal before this court which was fatal to the current application. - 6. Mr Mugabi further contended that this application was wrongly before this court in light of the rule 42(1) of the Court of Appeal Rules which required in

cases where an application can lie in both the High Court and the Court of Appeal for such application to be first taken before the High Court. He referred us to the case of National Housing & Construction Corporation versus Kampala District Land Board and Anor Supreme Court Civil Application No. 6 of 2002 and Shashkani Patel v Akampurira Michael Court of Appeal Civil Application No. 98 of 2003 [ both cases are unreported]. He therefore prayed that this application be dismissed as it has irregularly been commenced in this court.

7. Mr Nuwagaba, learned counsel for the applicant, submitted that the order appealed from was a final order which is appealable under section 66. Secondly with regard to the submission that this applicant should have first applied for an injunction before the High Court in terms of Rule 42 (1) of the Court of Appeal Rules, he submitted that there was no clear provision empowering the High Court to issue an injunction after a matter has been determined by the High Court. He submitted that the cases referred to by his learned friend related to execution and not to applications for a temporary injunction and were therefore not applicable.

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8. Under section 66 of the Civil Procedure Act an appeal will lie as of right from a decree of the High Court of Uganda to the Court of Appeal. The question to be asked here is whether the decision purported to be appealed from is a decree of the High Court? If it a decree of the High Court then it would be appealable as of right under section 66 of the Civil Procedure Act. If it is not a decree and it is an order it may be questioned whether an appeal can lie without leave of court.

9. We agree with Mr Mugabi that an appeal is a creature of statute. The Mortgage

Act did not create a right of appeal. But it need not create a right of appeal if $\hat{\gamma}^{\dagger}_i$

the Civil Procedure Act already takes care of that. In our view whether a right of appeal exists or not is a matter that will be re agitated at the hearing of the appeal. We shall therefore decline to make a conclusive finding on that ground. We shall however state in passing that a decree is defined under the Civil Procedure Act as

'the formal expression of an adjudication which, so far as regards, the court expressing it, conclusively, determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.

- 10. Suit' is defined in the Civil Procedure Act as meaning all civil proceedings commenced in any manner prescribed. - 11. It appears to us, without finally deciding this point, that the proceedings commenced in the court below from which an appeal is sought to be pursued in this court were an adjudication that would conclusively determine the rights of the parties to it. A decision thereon would qualify to be a decree. The proceedings themselves qualify to be referred to as a suit. For purposes of this application we are not prepared to hold that the applicant has no right of appeal at this stage. We shall confine ourselves to our initial remarks and shall at this stage refuse to hold that there is no appeal before the Court of Appeal. We leave it to the panel that will hear the appeal itself to determine this point. - 12. With regard to the question of whether the applicant could have initially applied for an injunction before the High Court we are satisfied that the High Court has the power to issue such injunctions whether during the currency or after the determination of any suit before it under section 65 (c) the Civil Procedure Act and section 38(1) of the Judicature Act. We agree with Mr.

Mugabi that in accordance with Rule 42 (1) of the Court of Appeal Rules this application should first have been presented before the High Court.

Nevertheless in the interests of justice in order to bring this matter to a speedy conclusion we shall not dismiss the application. We shall consider the same on its merits.

- 13. We note that the question to be resolved in the pending appeal of the applicant is not frivolous given the finding of the court below that the applicant was the wife of the respondent no.2 and that the respondent no.2 had not sought her consent before mortgaging the said property. As the respondent no.1 has made it very clear that it intends to sell the said property as soon as possible it is clear that this could easily dispose of the subject matter of these proceedings well before these proceedings are over. This would render the appeal nugatory as the subject matter would disappear in the sense that it would get beyond the reach of the applicant. - 14. We are satisfied that this is a just case in which to issue a temporary injunction to restrain the respondent no.1 from selling of this property prior to the determination of the applicant's appeal. However this injunction is not open ended. It shall have effect for only one year. The applicant must take the necessary steps to dispose of its appeal within 12 months from today otherwise the temporary injunction will lapse.

Dated at Kampala this 25<sup>th</sup> day of June 2014

Honourable Lady Justice Solomy B Bossa **Justice of Appeal**

L'usalemu Honourable Justice Professor Lillian E Tibatemwa

Justice of Appeal

ntin Honograble Mr. Justice FMS Egonda-Ntende

Justice of Appeal