Ankole Riverline Hotel Limited v Kakooza (Miscellaneous Application 317 of 2019) [2019] UGCA 2106 (2 December 2019)


THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA

### AT KAMPALA

## Miscellaneous Application No. 317 of 2019

(Arising from Miscellaneous Application No. 316 of 2019) (Arising from High Court Civil Suit No. 54 of 2018)

#### Ankole Riverline Hotel Limited ::::::::::::::::::::::::::::::::::::

Versus

Kakooza Mathias ::::::::::::::::::::::::::::::::::::

Hon. Justice Remmy Kasule, Ag. JA sitting as a Coram: single Judge

# **Ruling**

The applicant, pursuant to Sections 10 and 12 of the Judicature 25 Act and Rules 2, 6(2)(b) and 43 of the Rules of this Court, seeks an interim order of stay of execution by stopping the eviction of the applicant from the suit property comprised in Freehold

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30 35 40 Register Volume 1235 Folio 6 Mbarara Municipality. The Suit property was the subject of the dispute as to the ownership of the sa-rne between the applicant and the respondent to this application and had resulted in lodging in the High Court at Mbarara Civil Suit No. 54 of 2018 whereby the Court was being called upon to determine the true owner of the suit property. High Court Civil Suit No. 54 of 2018 was dismissed on 28.03.2019 by the High Court, Mbarara, without the Court having heard the parties to the suit as to their respective claims to the suit property by adducing evidence and calling witnesses. Miscellaneous Applications Nos. 64 of 2079 and 243 of 2079 arising from the said Civil Suit No. 54 of 2O1B were also dismissed on 16.09.2019.

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The application is supported by the affidavit of TWonryeirwe Hygin Kururagire, the Managing Director of the applicant.

Learned Counsel Justus Nuwamanya represented the applicant 4s at the hearing. The respondent and his Counsel, though served, were absent. The affidavit of service is on the Court record. This Court thus decided to proceed with the hearing of the application.

By way of background, a dispute exists between the applicalt so and the respondent as to the legal ownership of the property comprised in Freehold Register Volume 1235 Folio 6, Plot 89-9 <sup>1</sup> Kabale Road, Mbarara.

The applicant had mortgaged this property to Guaranty Trust Bank (U) Limited under some financial contractual arrangement ss between the applicant and the said bank. As a result of the


alleged breach of the said financial contractual arrangements, the said bank is alleged to have sold the suit property to the respondent. Disputing the legality of the sale, the applicant instituted in High Court at Mbarara Civil Suit No. 54 of 2018 against the respondent, Guaranty Trust Bank and the Commissioner, Land Registration. Filing of pleadings by all the parties was completed.

65 10 75 The said HCCS No. 54 of 2018 was then fixed, apparently not at the prompting of the applicant, for hearing on 28th March, 2019 at 9.00 a.m. at Mbarara High Court. Counsel for the applicant were served with a Hearing Notice on 27.h March, 2019. Due to being given only one day for the hearing of the case, the applicant's lawyers could not attend the hearing as they had other prior Court commitments, which they could not re-adjtrst due to the short notice of service. The applicant's Managing Director, so he asserts in his affidavit to this Court, proceeded to the Court at Mbarara on 28th March, 2019, but being not conversant with the Court set up, and in the absence of his lawyers, he sat in the Chief Magistrate's Court and by the time his case was called in the High Court, he was absent, and the suit was dismissed due to absence of the applicant and their Counsel.

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The applicant, thereafter todged in the High Court at Mbarara Miscellaneous Application No. 64 of 2019 for reinstatement of the dismissed suit.

On discovering that the Court had dismissed the said suit on the ground, amongst others, that there was another High Court Civil

85 90 Suit No. 018 of 20 12 pending in the High Court of Uganda at Masindi, with similar facts, issues and parties, as High Court Civil Suit No. 54 of 2018 at Mbarara, which the applicant disputed, the applicant lodged in the High Court at Mbarara, Miscellaneous Application No. 243 of 2Ol9 to amend Miscellaneous Application No. 64 of 2019, so that Application No. 64 of 2Ol9 has in it a prayer seeking a review of the order dismissing HCCS No. 54 of 2018, on the ground that the order of dismissal was based, among others, on a mistake that High Court Civil Suit No. 018 of 2OL2had the same facts, issues and parties like High Court Civil Suit No. 54 of 2018.

95 The applicant also filed in the High Court at Mbarara High Court Miscellaneous Application No. 94 of 2Ol9 to stay execution pending the disposal of the application to reinstate High Court Civil Suit No. 54 of 2018.

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On 16.09.2019 the High Court at Mbarara dismissed all the above stated applications as being an abuse of Court process

100 The applicant then lodged a Notice of Appeal on 18.09.2019 in the High Court at Mbarara intending to appeal against the orders of dismissal of Civil Suit No. 54 of 2018, and all applications arising therefrom.

105 It is the applicant's case that the respondent is taking steps to move High Court at Mbarara in the dismissed High Court Civil Suit No. 54 of 2018 to have Court bailiffs evict the applicant from the suit land. The applicant thus seeks an interim order of stay of such steps.

None of the assertions of the applicant have been controverted by the respondent either through an affidavit in reply or othenvise.

115 Rule 2 (2) of the Rules of this Court vests in this Court jurisdiction, in the exercise of the discretion of this Court, to make such orders as may be necessary to achieve the ends of justice. The preservation of the right of appeal is one of the ends of justice. See: Supreme Court Civil Application No. 11 of 2015: Matthew Rukikaire vs Incafex Limited. In Hon. Theodore Ssekikubo and 3 Others vs the Attorney General and Others: Supreme Court Constitutiona.l Application No. 04 of 2014, the Court stated that:

1,20 125 "Consideration for the grant of an intertm order of stag of execution or inteim injunction is uhether there is <sup>a</sup> substantiue application pending and whether there is <sup>a</sup> senous threat of execution before the heaing of the substantiue application. Needless to saA, there must be a Notice of Appeal".

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This Court is satisfied that this application is properly before this Court, the applicant having first sought a stay of execution in the High Court at Mbarara through Miscellaneous Application No. 94 of 2019, but then the application was dismissed, like was the fate of othcr applications arising from the dismissed High Court Civil Suit No. 54 of 2018. Thus the applicant complied with Rule 42(1) of the Rules of this Court.

There is a Notice of Appeal lodged in the High Court, Mbarara, on 18.09.2019, and there is also the substantive Miscellaneous

<sup>135</sup> Application No. 316 of 2OL9 pending hearing in this Court. Civil Appeal No. 270 of 2019 has also been lodged in this Court.

The applicant's assertion of a threat of being evicted anltime from the suit land, by the respondent, or any other party, to the dispute, has not in any way been controverted by the respondent or any other party. This Court thus holds that the applicant has proved to the satisfaction of Court that he is under a threat of being evicted from the suit property.

Accordingly this application is allowed. An interim order is hereby issued that the applicant, ar,d / or those deriving title from and/or through the applicant, are not to be evicted from the suit property comprised in Freehold Register Volume 1235 Folio 6, Plot B9-9 1 Kabale Road, Mbarara Municipality, the subject of the dispute in the dismissed High Court at Mbarara Civil Suit No' 54 of 2018 until the disposal of the substantive Court of Appeal Miscellaneous Application No. 316 of. 2Ot9 and/or Civil Appeal No. 270 ol 2019, whichever is disposed of earlier, or subject to any other order by this Court. 145 150

The costs of this Application are to abide the outcome of the substantive Miscellaneous Application No. 316 of 2Ol9 and f or Civil Appeal No. 270 of 2019, whichever is determined earlier. The Registrar, Court of Appeai, is to fix for hearing the substantive Miscellaneous Application No' 316 of 2OL9 and/or Civil Appeal No. 270 of 2019, at the earliest hearing date possible.

160 It is so ordered.

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day of Dated at Kampala this ... 2019.

Eller<br>Mm Clip $\Lambda$ Ag. Justice of Appeal