Esther Kiyingi v Departed Asians Property Custodian Board and Others (Civil Application No. 557 of 2022) [2022] UGCA 367 (24 May 2022)

Full Case Text

# THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### **CIVIL APPLICATION NO.557 OF 2022**

(Arising out of Misc. Civil Application No. 556 of 2022)

(Arising out of Civil Appeal No. 371 of 2021)

(Arising out of Misc. Civil Application No. 575 OF 2022)

EASTER KIYINGI.......... .................. APPLICANT

#### **VERSUS**

#### 1. DEPARTED ASIANS' PROPERTY CUSTODIAN BOARD

2. COMMISISONER LAND REGSITRATION

3. SANDRA NDYOMUGYENYI TAYEBWA ....................................

#### RULING BY GASHIRABAKE CHRISTOPHER JA

### (SINGLE JUSTICE)

#### Background

The Applicant's husband, Mr. Samuel Muleme, purchased the suit land from its $2d$ former owners in 1971 and partially paid the purchase price. The balance was to be paid in two years, so the departure of the Asians from Uganda found the purchase price was paid to the 1st Respondent who facilitated the transfer of the property into Samuel Muleme's names who then transferred the property to his wife, the Applicant. The family has had uninterrupted possession of the property to since $1971$ .

In 2002, the Applicant was sued in High Court vide, **The Administrator of the** Estate of the Late Habib Rhemu & Others vs. Easter Kivingi & Others, Civil Suit No. 575 of 2002, by a purported holder of Powers of Attorney to the Estate of the former owners. Along the way, the beneficiaries of the former owners also laid claim to the property and joined the Suit. The High Court struck the original plaintiffs off the suit, found that the property did not belong to the other parties in the suit and made a Declaratory Judgment in favor of the 1st Respondent. Being dissatisfied with the Judgment, the 1st Applicant filed Civil Appeal No. 371 of 2021.

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That unknown to the Applicant, the 1st Respondent obtained a Warrant to deliver vacant possession against the Applicant and her husband Samuel Muleme and got registered on the title as proprietor. They were evicted without effectively serving the warrant on the Applicant or any member of her family. Before the eviction was completed, the Applicant obtained an interim Order from the High Court with which they retained possession. The interim order was vide M. A. No.739 of 2022 pending the determination of M. A No. 738 of 2022 which sought to stay the execution. The Application to stay the execution was dismissed on $24th$ May 2022 hence this application for an interim Order.

This application was brought by way of Notice of Motion under **Rules 2(2), 6(2)** (b) and 43 of the Judicature (Court of Appeal Rules) Directions S. I 13-10, for orders that:

- An interim Order of Injunction doth issue maintaining the status quo of $a.$ and restraining the Respondents, their agents, appointees, assignees, successors, employees, servants and any other persons acting on their behalf of claiming an interest through them, or who may derive or claim an interest through the Respondents, from advertising or continuing to advertise for sale, from selling, interfering the Applicant's possession, tampering with, disposing, auctioning, taking, any steps and or carry out actions in any manner whatsoever which are all able to and or are likely to alienate and or interfere with the Applicant's interest and possession in property comprised in LRV 118, Folio 8 Plot No. 2 Fort Road, Old Kampala Block 2 Plot 259, until the determination of the main application for a temporary injunction. - The costs of and incidental to this application be provided for. b.

The application was premised on the grounds set out in the affidavit of Mrs. Easter Kiyingi briefly that:

- 1. There is a pending substantive application for a temporary injunction, joinder of the Respondents to the Appeal and service of the Notice of Appeal in Civil Appeal 371 of 2022 on them out of time before this court, from which this interim application arises, and it has a high likelihood of success. - The Applicant was the registered proprietor of the suit land and a $2.$ Defendant and Counter Claimant in Civil Suit No. 575 of 2002. The Administrator of the Estate of the Late Habib Rhemu and Others vs. Easter Kivingi and others. - 3. The 1st Respondent was declared an owner of the suit premises in Civil Suit No. 575 of 2002 which judgment is being challenged in Civil Appeal No. 371 of 2021. There is also pending HCMA No. 740 of 2022, challenging the 1st Respondent purported execution of the declaratory judgment from a suit they were not party without taking out consequential proceedings.

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| | 4. There is a prima facie case and the pending actions raise triable issues | |-----------------|------------------------------------------------------------------------------------------------------------------------------------------------------| | | and serious matters meriting thoroughly judicial consideration, and | | | questions touching the subject matter of the suit, which warrant | | | consideration and final determination by this honorable court, on | | | which courts will pronounce judgments, and the Applicant's case has a | | 1 b | very high likelihood of success. | | | 5. There is an imminent threat of alienation and a danger of wasting away that suit property by the Respondents and other persons acting on their | | | behalf, steps capable of evicting the Applicant, disposing of land or | | | alienating the suit property before the determination of Civil Appeal | | 15 | No. are already being taken. | | | 6. The Respondent purported to execute a Warrant of Eviction against the | | | Applicant but the same was not successfully completed and is being | | | challenged by the Applicant and other her husband vide High Court | | | Land Division Misc. Application No. 780 of 2022. | | $2\overline{b}$ | 7. The Applicant will suffer substantial loss and irreparable injury which | | | cannot be easily compensated for in damages because the suit property | | | is a prime family property in the business district of Kampala which once alienated will be impossible to get back. | | | There is a serious likelihood of the occurrence of a travesty and 8. | | $2\frac{1}{2}$ | negation of justice with pending actions likely to be rendered nugatory. | | | 9. The balance of convenience lies in favour of the Applicant, who is the | | | most likely party to suffer serious injustice. | | | 10. It is in the interest of justice that the application be allowed so that the | | | status quo be maintained. | | 3d | | | | The Respondents opposed this application through the affidavits of Mr. | | | Ahumuza Hillary Ojuku and Mr. Kamugisha Leonard. | | | Mr. Ahumuza Hillary Ojuku averred that he is a court bailiff trading as Hillary | | | Ojuku and Associates. He stated that he received a warrant to give vacant | | | |

ve vacant possession in EMA 100 OF 2021 arising out of H. C. C. S No 575 of 2002 on the 16th December 2021. He further averred that the warrant directed him to put the 1st Respondent in possession of the suit property and further remove any person bound by the decree or any agent who may refuse to vacate the property. He stated that on the 20th day of May 2022, he duly carried out the execution and handed over the property to the 1st Respondent. That he duly completed and filed a return of the warrant of vacant possession in court. It was his averment that it is the $1^{st}$ Respondent who is in the possession of the suit property.

Mr. Kamugisha Leonard averred in his affidavit in rejoined that he was a Liaison officer of the 1st Respondent from central and western Uganda. He averred that he represented the 1st Respondent at the eviction of the occupants on Plot No 02 Fort Road. He averred that the eviction was complete and the property handed over to That however four days later the minister for Kampala Honourable him. Kabanda went to the property with her body guard and chased away the security

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guard he had deployed and allowed the Applicant to re-enter. While the minister was there Zziwa Noah one of the LC officials of the area rang him telling him that there was a problem at the premises. When he reached the premises, the security guards were no longer there and the people were ferrying properties back their propertied at the premises.

#### **Representation** $1b$

Ms. Arinda Ikanza and Kenneth Akumpurira represented the Applicant. Mr. Daniel Ogaro Represented the 1st Respondent.

# **Submissions for counsel of the Applicant.**

Counsel for the Applicant submitted that for court to grant an application for interim stay of execution there must be a status quo to preserve. She argued that $1\frac{1}{5}$ as deponed in the affidavits in support the Applicant and her family are in possession of the suit land. That the 1st Respondent was registered earlier this year as a leasehold proprietor despite the Applicant have her leasing running until $2031.$

Counsel submitted that the principles based no to grant an application for interim $2\phi$ stay where stipulated by court in **Patrick Kaumba Wiltshire vs. Ismail Dabule**, Supreme Court Civil Application No. 03 of 2018, where it stated that the Applicant must prove that there is a competent Notice of Appeal, substantive Application and a serious threat of execution.

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# A competent Notice of Appeal.

Counsel submitted that the Applicant submitted that Applicant filed a Notice of Appeal Vide Civil Appeal No. 371 of 2021 and has also filed a Memorandum of Appeal. She averred that since the $1^{st}$ and $3^{rd}$ Respondent were not party to the suit in High Court, they are also not parties to the Appeal. The Applicant has therefore applied to add the 1st and 3rd Respondent as parties to the Appeal. That the 1st is the beneficiary of the declaratory judgment and has already implemented the decision of the lower court.

# A substantive Application.

Counsel submitted that there is a pending substantive application No. 556 of 2022 35 seeking for orders that:

- 1. The Respondent's be ordered as parties to Civil Appeal No. 371 of 2021 Easter Kiyingi vs. Louis Bachu and others. - 2. The time within which to serve the Notice of Appeal in Civil Appeal No. 371 of 2021 on the Respondents be extended - 3. A Temporary injunction against the Respondents.

#### A serious threat of execution $1b$

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Counsel submitted that the Respondents are in the process of executing the Decree in **H. C. C. S No.** 571 of 2002. That the Applicant's earlier efforts to stay this execution have not yielded the necessary protection. That the Applicant first filed an application for stay of execution vide Court of Appeal **Easter Kiyingi vs.** Attorney General Civil Application No. 315 of 2021 in September 2021, it was dismissed on 21st March 2022 for being brought against the Attorney General yet seeking to bind the 1st Respondent. Justice Christopher Izama Madrama in Easter Kivingi vs. Attorney General, Civil Application No. 315 of 2021. Held that:

> " the Departed Asians Property Custodian Board is not a party and cannot enforce the declaratory judgment in the main suit in the high court without taking further proceedings against the occupants of the property for vacant position.'

Counsel submitted that without such further proceedings and unknown to the Applicants, the 1st Respondent had already extracted a warrant of eviction dated $2\frac{1}{2}$ 16th December 2021 and commenced an execution marred with several illegalities and irregularities. That on the basis of the sad unlawful execution the 1st Respondent's agents unsuccessfully attempted to evict the Applicants from the suit premises comprised in LRV 118 Folio 8 Plot No. 2 Fort Road, Old Kampala Block 2 Plot 259 $3d$

Counsel submitted that the Applicant's affidavit states that the Applicant and her family found out about this execution on the day of the attempted eviction. Paul Muleme's affidavit in rejoinder explains that the service was not effective having been served on an imposter as part of a scheme to evict the Applicants without Notice as is required under the Land Evictions Practice Directions of 2021. That the threat is that the Applicant will lose possession of her discovered home of 51 years if this interim Order is not granted. The Appeal challenging the basis of the $1st$ and $3rd$ Respondents' interest will also be rendered nugatory.

## **Submissions for counsel of the Respondent**

Counsel for the Respondent submitted that this application is improperly before 40 this court. Counsel alleged that the matter before this court was substantially the

as was handled by Madrama JA in **Easter Kiyingi vs. Attorney General, Civil** 5 Application No. 315 of 2021. Where the justice dismissed the application.

Counsel submitted that this is not allowed in law. Under Section $12(2)$ of the **Judicature Act** provides that any person dissatisfied with the decision of a single justice is entitled to have the matter determined by the bench of three justices which may confirm or vary or reverse the decision.

Gounsel also submitted that all the three Respondents in the present application were not parties to High Court Civil suit No. 575 of 2002 from which the Application arises. Counsel cited **Attorney General & Anor vs. Hon Basalirwa** and others consolidated Constitutional Appeal No 2 and 3 of 2020 where the court held that:

> "I would hold that unless a party took part of proceedings in the Constitutional Court and following this participation, the party was aggrieved by the decision of the Court, he or she does not have a locus whatsoever before this court."

Counsel then submitted that this court should strike out this application because $2\phi$ the parties in this application are strangers to the Appeal.

# **Merits of the Application.**

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Counsel for the Respondent agreed to the submissions of the Applicant as to the principles for issuing the interim order for stay as they were set out in Supreme Court in **China Henan International Cooperative Group vs. Justus** Kyabaliwa, Civil Application No. 29 of 2021.

# A competent notice of Appeal

It is the submission that there's no competent Notice of appeal, first, the Notice of $3d$ Appeal is in respect of Civil Appeal No 138 of 2017 arising from Civil Suit N $\phi$ .052 of 2009. Counsel submitted that the application before this court is in respect of Civil Appeal No. 371 of 2021 arising from Civil Suit No.575 of 2002. Counsel submitted that court should not grant an interim order in respect of High Court Civil Suit No. 575 of 2002 because the Notice is in respect of Civil Suit 35 No. 052 of 2009.

Secondly that the Notice of Appeal in annexture "C1" provides the head suit as:

| 1. The Administrator of the Estate of the late Habib Rhem | |----------------------------------------------------------------------| | 2. The Administrator of the Estate of the late Sadrudin Jetha | | 3. Shahbudin Habib Rhemu | | Versus | | 1. Easter Kiyingi | | 2. Louis Bechan | | 3. Anwar Najibu | | 4. Adam Shabdin | | The application before this court has different parties that is: | | |

*1. Easter Kiyingi..................................*

### Versus

- 1. Departed Asians Property Custodian Board - 2. Commissioner Land Registration - 3. Sandra Ndomugyeyi Tayebwa....................................

That the Notice of Appeal does not support the proceedings before this Court.

Thirdly that the intended appeal that formed the basis of the Notice of Appeal $2b$ does not support the Notice of Appeal. Annexture C2 to the Motion is a Memorandum of Appeal. It shows that the appeal is against; *Louis Bachu, Anwar* Najib, Adam Shabdin and the Attorney General. The plaintiff appealing in the Notice of Appeal annexure "C1" are not mentioned anywhere in the Memorandum of Appeal. The Notice of appeal fundamentally departs from the $2\frac{1}{2}$ Memorandum of Appeal.

Counsel lastly submitted that annexture "B", the judgment of the lower court, shows the first three Respondents were unsuccessful in the lower court. They have no decree or orders in their favor. A right of appeal cannot exist against an unsuccessful party. As for the Attorney General, he was not party to the suit. A Notice of Appeal which names an unsuccessful party as a Respondent is incompetent. Counsel cited China Henan International vs. Justus Kyabahwa Civil Application No. 30 of 2021. Where the Supreme Court held that the Notice of Appeal was incompetent because the intended appeal that formed the basis of the Notice of appeal was flawed as it did not arise from a decision of the court of Appeal.

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# A substantive Application.

Under this Counsel for the Applicant submitted that the applicant deponed that the substantive application for a temporary injunction has been filed and the same is pending. Counsel submitted that George William Bizibu deponed that the substantive Application has not been served upon him or his lawyers.

Counsel submitted that the non service of the substantive application renders it an incompetent application before court. Counsel submitted that in **Joel Kato and** Margret Kato vs. Nuulu Nalwoga Civil Application No.12 of 2011, court dismissed the application for an interim order for failure to serve the Respondent.

### An eminent threat of execution

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It is the submission of counsel that execution is complete as such there's no eminent threat as portrayed by the Applicant. He submitted that in Paragraph 7 Ahumuza Ojuku averred that A return warrant was filed and received in court on Monday 20th May 2022 [annexture "G"]. That the son of the Applicant called James Luyirika signed for and took the family properties [annexture "H" to Ojuku's affidavit and the execution was witnessed by the LC1 Chairman, vice chairmen and the police.

That Leonard Kemigisha after the eviction, he padlocked all the doors and closed of all outlets by placing iron sheets around the whole property. After the $2\phi$ execution was complete and he had put Saracen guards to guard the property, seven days later the minister in the Government of Uganda chased away security guards and re-entered

Counsel for the Respondent submitted that the use of Government Minister to forcefully re-enter amounts to trespass. That the applicant is using the court to $25$ validate he trespass, and contempt of the Registrar's order of execution and abuse of the Judge's Order.

### **Submissions in rejoinder**

In rejoinder to the first objection, counsel for the Applicant submitted that the dismissal of application Easter Kiyingi vs. The Attorney General C. A No. 315 of 2021 was based on the fact that the application was against on the wrong party. She further submitted that the law does not compel a party who agrees with a dismissal to appeal the decision of a court, neither does it prohibit the party from filing a different application the party which the Court decided should have been the right one sued. Counsel submitted that the preliminary objection was misconceived.

On the second objection, counsel for the Applicant submitted that:

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| $\overline{5}$ | Counsel submitted that a careful review of the record of appeal in Civil Appeal No. 371 of 2022 will actually show that the $2^{nd}$ Respondent was party to the High Court Suit and in fact the default Judgment which was entered against her for wrongful cancellation of the Applicant's title. | | | | | |----------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--|--|--|--| | 10 | Counsel further submitted that the 1 st and 3 rd Respondent who were not party to the suit are rightly added because of the principle of dominus litus which means that he or she has the right to choose who to sue and from whom he/ she knows and /or belies he/she will have a remedy against. She cited: | | | | | | | Electoral Commission vs. Sebuliba Mutumba & 2 others (Court of Appeal Miscellaneous Application 30 of 2012, which stated that; | | | | | | 1Ь | "The law as to joinder of parties to a suit, which includes an appeal makes a distinction between the rejoinder of one party who ought to have been joined as a defendant and the joinder of one whose presence before the court is necessary for the court to effectively and completely adjudicate upon questions involved in the suit." | | | | | | 2 b | And Departed Asians Property Custodian Board vs. Jaffer Brothers Ltd [1999] EA 55, Mulenga, JSC where court stated: | | | | | | $\overline{2}$ | "For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions involved in the suit one of two things has to be shown. Either it has to be shown that the orders, which the plaintiff seeks in the suit would really affect the interest of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such person joined so that he is bound by the decision of the court in that suit' | | | | | | 3d | Counsel submitted that the Respondents are rightly joined in this application because their acts are detrimental to the Applicant's rights in these ways: | | | | | | 35 | 1. The high court judgment which is the subject of this appeal appealed granted the $1st$ Respondent a declaratory judgment in the suit property despite them not having been a party to the suit. Subsequent to that judgment the 2 nd Respondent registered the 1 st 2. Respondent as proprietor of the suit property. The 1 st Respondent attempted to evict the Applicant and her family $3.$ from the suit premises. The $3rd$ Respondent has registered a caveat on the suit premises as 4. purchase from the $1^{st}$ Respondent. | | | | | | 40 | Merits of the Application. | | | | | | | Counsel for the Applicant submitted that the Notice of Appeal is competent. That the errors are just typo and cannot vitiate the purpose and intention the | | | | | | | $9$ Page | | | | |

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Noticc sought to servc. 'I-his typo can bc curcd by Aniclc 126 (2) (c) ol thc I995 LJganda Conslitution.

Counscl lurthcr submitted that thc Applicant didn't only filc a Noticc o[ Appcal but shc also filcd a Mcmorandum ol'Appcal and a l{ccord of Appcal. Counscl citcd Parambot Brcwcrics (U LTD vs. Standard Chartcrcd Bank and Anor ( Civil Application No. 46 of 22) whcrc in granting an intcrim Order of Injunction it was hcld that:

> "l:vcn through the law nrakcs mcntion of thc Notice of Appeal as thc basic rcquircrncnt, a rncrnorandurn ol Appcal sufficcs sincc thc Appcllant has takcn a I'uflhcr stcp bcyond thc Noticc ol'Appeal"

Counscl subrnitled that thc Applicant has lulf rlled the rcquirement of'a Noticc of Appcal.

### Substantivc Application

Counscl submittcd that thc Applicant has ably dcrronslrated that thcrc is a substanlivc application Civil Application No. 55612022 (arising tiorn Civil Appcal No. 371 /2021.'l'hat thc said application is pcnding lixing by thc Court l{cgistry alter which it shall bc scrvcd on thc Rcspondcnt. Shc citcd Zubeda Mohamcd and Anor vs. Laila Kaka Wallia and othcrs (Civil Rcfcrcncc 07 of2016, whcre court hcld that:

> "A substantive application is a separatc scl ofdocunlcnls. It is a lloticc of Motion rvhich mLrst bc accompanicd by an allidavit stating thc rcasons !i)r thc application and it is givcn a distinct filc nurnbcr"

'l'hat basing on thc abovc casc, thc Applicant has dcmonstratcd that thcrc is an application pending bclore this court.

### Whcthcr the application was filcd in bad faith.

Counscl submitted that applying lbr injunctivc rclicls bclbrc a courl of law, whcrc a nccd arises, has ncvcr amountcd to bad laith and thc tinrc lranrc within which the Applicant has bccn

### Status quo of the propcrty

Counscl subrnittcd that thc Rcspondcnts counscl conccdcd that thc Applicant's rcgaincd thcir posscssion altcr coufl grantcd an intcrirn Ordcr. Counscl maintaincd that thc cviction was incornplctc, unlawlul and inclfcctivc. Counscl subrnittcd that this undisputcd status quo is that thcy seck to maintain in this court.

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# **Consideration of Court.**

| 2) Subject to sub rule (1) of this rule, the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the court may- (a) | | | | | | |------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--|--|--|--|--| | (b) In any civil proceedings, where a notice of appeal has been lodged in accordance with rule 76 of these Rules, order a stay of execution, an injunction, or a stay of proceedings on such terms as the court may think just. | | | | | | | The Power to stay execution under the above Rule is derived from Rule 2(2) of the Rules of this Court, which gives this court inherent power to make such orders as it is necessary to attain ends of justice, the Rule provides, | | | | | | | "Nothing in these Rules shall be taken to limit or otherwise affect the inherent power of the court, or the High Court, to make such orders as may be necessary for attaining the ends of justice or to prevent abuse of the process of any such court, and that power shall extend to setting aside | | | | | | | judgments which have been proved null and void after they have been passed, and shall be exercised to prevent abuse of the process of any court caused by delay." | | | | | | | In Hon. Theodore Ssekikubo & Ors vs. AG & Ors, SC Constitutional Application No. 04 of 2014, this Court said: | | | | | | | "Rule 2(2) of the Judicature Court Rules gives this Court very wide discretion to make such orders as may be necessary to achieve the ends of Justice. | | | | | | | One of the ends of Justice is to preserve the right of appeal". | | | | | | | Court in Hwang Sung Industries Limited v Tajdin Hussein & Others, SC Civil Application No. 19 of 2008, cited by both learned counsel, Justice Okello JSC held that; 35 | | | | | | | "For an application for an interim stay, it suffices to show that a substantive application is pending and that there is a serious threat of execution before hearing the substantive application. It is not necessary to pre-empt the consideration of matters necessary in deciding whether or not to grant the substantive application for stay." | | | | | | | | | | | | | | $11$ Page | | | | | | | | | | | | |

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In Zubeda Mohammad & Anor vs. Laila Kaka Wajja & Anor, SC Civil **Reference No.07 of 2016,** relied on by learned counsel for the respondent, this Court summarized the conditions for grant of an interim order and held that:

"In summary, there are three conditions that an applicant must satisfy to justify the grant of an interim order:

- 1. A competent Notice of Appeal; - 2. A substantive application;

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A serious threat to execution.

### A competent Notice of Appeal

On this ground there is a Notice of Appeal vide Civil Appeal No. Civil Appeal No. 371 of 2021. Civil Appeal No. 371 of 2021 arises from H. C. C. S No. 575 of 1 2002, in the Names of Easter Kiyingi vs. Louis Bachu, Anwan Najib, Adam Shabdin and Attorney General. However, the Notice of Appeal annexture "C1' IS IN RESPECT OF Civil Appeal No. 138 of 2017. Arising from Civil Suit No. 052 of 209 of the Chief Magistrate's Court of Mpigi at Wakiso and the parties where between. The Administrator of the Estate of the Habib Rhem, the Administrator $2\phi$ of the Estate of the Late Sadrudin Jetha Shahbudin Habib Rhemu and Easter Kiyingi, Louis Bachu, Anwar Najibu and Adam Shabdin.

It is evident from the facts in the Memorandum of Appeal and Notice of Appeal are not in agreement. This brings confusion in the mind of court and the Respondents. The purpose of the Notice of appeal is for the Appellant to notify $25$ the Respondents of the intention to appeal. This notification enables them to prepare appropriately for the matter. Rule $76(1)$ and (5) of the Rules of this court provides that:

> "Rule 76. (1) Any person who desires to appeal to the court *shall* give notice in writing, which shall be lodged in duplicate with the registrar of the High Court.

Rule $76(5)$

A notice of appeal *shall* be substantially in Form D in the First Schedule to these Rules and shall be signed by or on behalf of the appellant.

| | Form D. | | | |------------------|----------------------------------------------------|--------|--| | | Notice of Appeal. | | | | | (Heading as in proceedings appealed from) | | | | Take notice that | being dissatisfied | | | | | with the decision of the Honourable Justice | | | | | given | | | | $\alpha$ | on the | day of | |

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intends to appeal to the Court of Appeal against the whole of the decision/such part of the decision as decided that ......

The title according to Form D must be a heading as in "proceedings appealed" from." According to the title the headings shows that the proceedings being appealed from are Civil Appeal No.138 of 2017 and Not H. C. C. S of No. 575 of 2002. It's therefore my finding that there's no competent Notice of Appeal before this court, because the suit Number is different from the Notice of Appeal and the parties as well. This court is not convinced by the agreement of counsel for the Applicant that this was just a typo error. There were no attempts by counsel to even amend or rectify the said anomaly.

### A substantive Application

Having found that the Notice of appeal is incompetent then the Miscellaneous Application No 556 has no leg to stand on. In China Henan International Cooperation Group Co. Ltd vs. Justus Kyabahwa Supreme Court Civil Application No.30 of 2021 it was held that:

> "The second condition for the grant of an interim order is the existence of a substantive application. In light of my earlier finding, this ground also fails as the substantive application has no leg to stand on since the Notice of Appeal is incompetent. In **Zubeda Mohammad & Anor vs** Laila Kaka Wajja & Anor, (supra) this Court faulted the single Justice who had granted an interim stay of exception in the absence of a substantive application for stay of execution. Consequently, the Court allowed the reference and set aside the said interim order for that reason among others."

#### Imminent threat of Execution. $3d$

The third condition is imminent threat of execution. It is evident that there was partial execution as averred by the Applicant though it was tinted with irregularities as justice Madrama held that this was just a declaratory judgment that was not capable of enforcement without any further proceedings, court in Esther Kiyingi vs. the Attorney General Civil Application No. 315 of 2021, Madrama, J. A held that,

> "At best the judgment was a mere declaration that the property reverted to the DAPCB and because DAPCB was not a plaintiff or a defendant, or even a third party under third party proceedings, it was only upon them to take up further proceedings in the matter...

> It follows that the declaratory order issued by the High court is not sufficient without further proceedings to execute the right declared in favor of a third $party$ .......

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Secondly the Departed Asian Properties Custodian Board is not a party cannot enforce the declaratory judgement in the main suit in the High court without taking further proceedings against the occupants of the property for vacant possession."

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It is my finding that there is no existence of a threat of execution since the Respondents cannot enforce a declaratory judgement in the main suit in the High $1b$ Court without taking further proceedings against the occupants of the property for vacant possession. This court cannot issue an order against the Respondent who were not party to the original suit because they do not have the legal backing to execute it. This court takes cognizance of the fact that the 1st Respondent attempted to evict the Applicant but this was done illegally. Any illegality brought to the attention of court cannot be condoned.

With the above reasons I find that this application has no merit and it should be dismissed. Since the Respondent that conducting illegal acts and threatened the possession of the Applicant without following the lawful process this court orders that each party bears its court.

Application is hereby dismissed.

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## **C. GASHIRABAKE** JUSTICE OF APPEAL

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