Catherine Cliff v Ssempebwa (Miscellaneous Application 168 of 2016) [2016] UGCA 106 (24 August 2016)

Full Case Text

a. a

# 5 THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA

#### AT KAMPALA

## APPLICATION NO. 168 OF 2016

(Arising from Court of Appeal Ciuil Appeal No. 185 of 2016: Itself arising from HUh Court Miscellaneous Application No. 0143 of 2015 which arose from High Court lVo. 38 of 2015)

1s Catherine Cliff :::::::: ::::::: ::::::::: :::::::::: : : : : : : : : : : : : : : : : : : : Applicant

## YERSUS

20 Geoffrey Ssempebwa Respondent

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

## G

This Ruling is in an application for an interim order to stop the respondent from effecting a re-entry in the property comprised in 30 Kyadondo Block 261 Plot 59, "Leasehold Register Volume 3780

Folio 11 Plot 59 land at Lukuli. The property is popularly known as the "American Club-Makindye".

The facts of the application are straight forward.

The respondent is the registered proprietor of the mailo interest 3s of Kyadondo Block 261 Plot 59 at Lukuli measuring approximately 0.93 acres having acquired this interest from the estate of the late Juliana Ndibalekera.

The United States Government leased this property form Juliana Nibalekera and set up "The American Club-Makindye" which is a 40 recreational club. In 2013, the respondent as transferee of Plot 26L Plot 59, consented to the United States of America to transfer the leasehold interest; leasehold register volume 3780 Folio 14 Plot 59 to the applicant in accordance with the terms of the lease. On LO. O6.2OL4, the applicant was registered as 45 proprietor of the said leasehold property.

Thereafter, the applicant's version is that she has continued to offer the sarne recreational activities like those that the club under the management of the Embassy of the United States of

America used to offer at the suit premises. For this purpose the 50 applicant executed a management contract with Messrs Makindye Country Club Limited to supervise and manage the business professionally on her behalf.

On his ptrt, the respondent asserts that the applicant breached the lease agreement by sub-letting the property to Makindye 55 Country Club Limited and by operating on the property commercial hotel senzices. By reason of these alleged breaches, the respondent resorted to taking steps to re-enter the property.

The applicant, denying the respondent's assertions that she was in breach of the lease, lodged in the High Court, Kampala Civil 60 Suit Number 38 of 2015, whereby she prays the High Court to declare the attempts by the respondent to re-enter the property unlawful and contraqr to the terms of the lease. She also prays for an order to prevent the re-entry by the respondent and a permanent injunction against the respondent from carrying out 65 any interference with the leased property.

The respondent, the pending of Civil Suit No. 38 of 2015 notwithstanding, continued to act and conduct himself in

attempting the enforcement of the re-entry. The applicant resisted this and she partly did so by lodging in the same High 70 Court Miscellaneous Applications Numbers 143 of 2015 and L44 of 2o15 for interim and/or temporary injunctions to stop the respondent from carrying out the re-entry until the final

disposal of HCCS No. 38 of 2015.

On the 23.05.2016, High Court Miscellaneous Application No. 75 143 of 2015 was disallowed by the High Court (Eva K. Luswata, J) holding that;

331do flnd merlt ln arguments of Counsel for the respondent that the tempordry lnjunctlon is belng sought in aain cs the o,ct of the re-entry ho,s alreadg been 80 o,chleued. ,rr

Dissatisfied, the applicant appealed to this Court against the said decision through now Ctttll Appeal ^l\Io. 785 of 2076 and also lodged in this Court the application (168 of 2016) for interim order of injunction, the subject of this ruling.

85 At the hearing of this application, learned Counsel Ssemambo Rashid represented the applicant while Counsel Okello Oryem was for the respondent.

For the applicant it was submitted that the Notice of Appeal as well as the substantive application No. 167 of 2OL6 had been fiIed in 90 this Court and that the appeal was also in the process of being filed and, as such, it was proper, in the circumstances that an interim order be issued to prevent the respondent from effecting re-entry in the suit property.

Applicant's Counsel further contended that the applicant was still 95 in physical possession of the suit land and property and was still the registered owrler of the lease and was in possession of the land title for the same. If the re-entry is not stopped, the applicant would suffer irreparable injury by way of loss of property, business as well as suffer injury to her reputation and character in the eyes of her 1oo both local and international clients that she serves at the said club.

The appeal to this Court will also be rendered nugatory and so too will be the Civil Suit No. 38 of 2015 now pending in the High Court.

O Counsel prayed that the application be allowed in favour of the applicant.

- 105 For the respondent, his Counsel submitted, in opposition to the application, that since the applicant had not yet lodged an appeal to this Court, let alone exhibited to Court a copy of the substantive application No. 167 of 2016 allegedly Iiled in this Court, then her application for an interim order ought not to be allowed. - 110 Further, Counsel contended that though the ruling, the subject matter of the Notice of Appeal, was delivered on 23.05.2016, the applicant had taken no steps to get the proceedings and lodge the appeal in this Court. This was dilatory conduct on the part of the applicant. She deserwed no interim order by reason thereof. - 115 It was also argued by the same Counsel that under Order 44, Rule 1 of the Civil Procedure Rules, the applicant had to first seek leave to appeal to this Court against the High Court decision delivered in High Court Miscellaneous Application No. 0143 of 2OLs dated 23.05.2016. Since no such leave had been sought, there was L20 no valid appeal that has been filed or is likely to be liled in this

Court. Thus the applicant had not demonstrated that she has a prima facie case to deserve to be granted an interim order.

Counsel also submitted that a re-entry had already been effected and as such there was nothing that this Court could prohibit.

- 725 Finally, Counsel called upon this Court not to entertain the application since its hearing was in Court vacation and the applicant had not sought any leave to have the application determined during Court vacation. Counsel prayed for the dismissal of the application with costs. - 130 In resolving his application, this Court is mindful of the principles of law to be applied. These are that it suffices for the applicant to show that a substantive application or appeal is pending and that there is a serious threat of execution before the determination of the pending substantive application or appeal. - 135 It is not necessary to pre-empt consideration of matters necessary in deciding whether or not to grant the substantive application for stay; See Hwang Sung Industries Ltd vs TaJdin Hussein,

O Rainbow Foods Ltd and Nizar Hussein: Civil Application No. 19 of 2oo8 (sc).

740 Where the grant or refusal of an interlocutory injunction will have the practical effect of putting an end to the suit pending in Court, the Court should approach the case on the broad principle of what it can do in its best endeavour to avoid injustice, and to balance the risk of doing any injustice to either party. See: Cayne and Another

# 745 vs Global Natural Resources Plc: [1984] 1 ALLER 225.

The Court, in exercise of its discretion, has power to grant an interim temporar5r order of stay where it appears to be equitable to do so, with a view of temporarily preserving the subject matter of the suit: See Court of Appeal Miscellaneous Application No. 7 of 1so 1998: National Enterprise Corporation vs Mukisa Foods. See also; Court of Appeal Civil Application No 62 of 2Ol4; Commissioner Customs, URA vs Kayumba Emile Ogane t/a ETS Ogane Company

The first issue to resolve is whether entertaining this application on 155 03.08.2016, purportedly during Court vacation and with absence of a certificate of urgency, nullifies these proceedings.

Bahimbisomwe vs Julius Rwabinubi the Supreme Court dealt with a similar situation and considered Rules 21,l2l and 46 of the 150 Supreme Court. These Rules are similar to Rules 2l,l2l and 48 of the Rules of the Court of Appeal. Rule 2ll2l provides: In Civil Application (Reference) No. 04 of 2OO9z Hope

> "No business urlll be conducted during a aacation, unless the Chtef &tstice otherulse dlrects, except the delloery of Judgments and, uthen the matter is shown to be one of urgencg, the heartng of appltcatlons and the taxation of bllls'.

Rule 48 requires that an application to be heard during a Court vacation, where the applicant is represented by an advocate, the s€rme shall be accompanied by a certificate of urgency signed by the applicants' advocate.

The Supreme Court having considered the above Rules held in the Bahimbisomwe vs Rwabinubi case (Supra) that non compliance with the stated Rules does not render Court proceedings a nullity. Specifically with regard to Sub-rule l2l of Rule 2L, tlne Supreme 775 Court held;

L70 o "In ottr uleut, the sub ntle ls directory and not mandatory and it appears to us that the purpose ls essentidllg to dllout tlme to Courts to do house cleanlng wlthout normal busg actlaltles. "

180 In the application before this Court, the application was fixed for hearing before the Court vacation arrived but was given the hearing date of 03.08.2OL6.

The Court itself that has to utilize the vacation has not objected to the hearing of the application.

185 Given the subject matter of the application, which is to stay further steps by the respondent of effecting a re-entry in the suit propert5r, the application is indeed one of an urgent nature deserving disposal during Court vacation.

At any rate, this Court in exercise of its inherent powers under Rule 190 2l2l of the Rules of this Court can decide to entertain any matter any time, including Court vacation, if circumstances so dictate.

Accordingly this Court holds that the hearing of this application on 03.08.2016, a date claimed to be Court vacation, was valid in law

and so are the Court Proceedings of that hearing. The submission 195 of Counsel for the respondent that the proceedings are a nullity by reason of the hearing of the application having been held during Court Vacation is thus rejected.

The second issue lies in the submission for the respondent that the applicant has no direct right of appeal to this Court and as such 200 there is no likelihood of the appeal of the applicant to this Court being successful, in the absence of leave to appeal being first granted to her by the High Court.

This Court is unable to accept that submission at its face value. It appears to this Court that under Rule 44 Rule 1(q) the applicant 205 can appeal as of right to this Court against a decision on temporary injunctions and related interlocutory orders. At any rate, this is an issue that can be fully argued and decided upon by this Court at the stage of entertaining the appeal itself. This Court thus overrules the said respondent's submission

2to The third issue for consideration in resolving this application is that, it appears to this Court, that the main dispute between the applicant and the respondent is whether the applicant committed 11

any breach of the lease agreement, whether the respondent is entitled to re-enter the leased property and whether or not any valid re-entry has been effected. 2L5

The applicant lodged Hccs No. g8 of 2o1s in the High court to resolve those issues. She in particular sought a declaration that the attempts by the respondent to re-enter the suit property were irregular, unlawful and a breach of the terms of the lease and she prayed for an order to prevent the re-entry and interference with the lease.

The respondent does not deny that the applicant executed a lease with his predecessor-in-title in respect to the suit property. He instead contends that the applicant has committed breach of the 22s lease as to what she carries on at the suit premises. The breach is not in respect of changing the nature of the suit property such as altering its physical boundaries or demolishing structures thereon or putting thereon others. The alleged breach is as to use of the suit property and by who. The respondent alleges that the 230 applicant has sub-leased to a third party, Makindye Country Club

Limited, and is also carrying thereon commercial hotel services contrar5r to the lease terms.

The applicant's case is that she acted and continues to act in accordance with the terms of the lease as to the use of the suit 23s property and that she has not in any way sub leased the same to any other third party. She asserts that Makindye Country Club Limited is contracted to offer management services by supervising and managing the business professionally on her behalf, and is not in any way a sub-lessee of the suit propert5r. It is also her case 240 that, as long as the respondent continues his attempts to re-enter the suit property, this causes her loss and suffering given the fact that she runs a social club at this property and her clients include both local and those from abroad.

The applicant contends that it was not appropriate for the trial 24s Court in its ruling on 23.05.2OL6 in Miscellaneous Application No. 0143 of 2O15 to come to the conclusion, like the Court did, that the respondent had completed re-entry of the suit property. This, the applicant contends, is a matter that has to be resolved upon as an issue in HCCS No. 38 of 2015 and only when the trial

2so Court has received evidence both from the applicant and the respondent on the issue. As of now, and as of 23.05.2016 when the learned Justice delivered her ruling, all that had and has happened is for the respondent to attempt to re-enter the property and the applicant resisting such attempts, and as part of that resistance, 2ss she lodged HCCS NO. 38 of 2015 and Miscellaneous Applications

## Numbers 143 of 2o1s and 144 of 2o1s in the High court.

The respondent maintains that the trial Judge was entitled to rule as she ruled that re-entry had already been effected.

This Court, after perusing the records in the Court Civi1 Registry is 260 satisfied that, as of the date of delivery of this ruling, the applicant had lodged in this Court the substantive application No. L6Z of 2016 as well as Civil Appeal No. 185 of 2016 whereby the above decision of the learned trial Judge is being challenged in this Court.

265 In the considered view of this Court, both the substantive application and the appeal to this court cannot be said to be frivolous given the facts in the High Court that brought about the filing of the substantive application and the appeal to this court.

This Court is satisfied that the ends of justice dictate that this Court protects the interests of the applicant in the suit property pending disposal of the substantive application andf or the appeal. 270

Accordingly this application is allowed. The Implementation of the ruling of the High Court to the effect that the respondent had reentered the suit property and that this re-entry was a completed legal act, is hereby stayed.

An order is hereby issued that pending disposal by the Court of Appeal of Miscellaneous Application No. 167 of 2OL6and,lor Civil Appeal No. 185 of 2o-16, the applicant is to remain in possession, occupation and lrse, strictly in compliance with the terms of the lease of the suit property, the American Club, comprised in Kyadondo Block 261 Plot 59 LRV 3780 Folio 1 1 Lukuli, Makindye Division, Kampala. 275 280

The respondent is hereby restrained from interfering with the possession, occupation and use of the said property by the applicant until disposal by this court of Miscellaneous Application No. 167 of 2016 and/or civil Appeal No. 1gs of 2016. It is ordered that both the substantive application and the

28s

a appeal be fixed for hearing at the same time so as to save the time and resources of this Court

Before taking leave of this application, this Court wishes to point 2so out that the management by the High Court of the High Court Civil Suit No. 38 of 2o15 and the Miscellaneous Applications 143 of 2015 and L44 of 2O15 has been, so far, in such a way that has resulted in unnecessary duplication of work on the part of that Court and the parties to the suit and the applications. This is so 2ss because the issues raised in the two applications would become non issues if High Court Civil Suit No. 38 of 2O1S was to be determined quickly to Iinality. In the suit the central question; for resolution is whether or not the respondent was/is entitled to reenter the suit property. A determination of that issue and others 3oo related to it in Civil Suit No. 38 of 2015 would save the Courts and the parties all this duplication of litigation of determining interlocutory matters in Civil Apptications numbers L4g of 2Ol5 and 144 of 2015. This would have been avoided had the trial Court concentrated its time and resources on determining the 3os substantive suit No. 38 of 2O15 other than having its time and

other resources diverted to entertaining Miscellaneous Application

No. 143 of 2015. case mzrnagement ought to avoid such a situation in future.

As to the costs of this application, these are to abide the outcome of 310 Miscellaneous Application No. 16z of 2016 and or civil Appeal No. 185 of 2OL6.

Dated at this 24tb day of August, 2016. 315 . Justice Remmy K. Justice of