Mafabi v Mash Investments Limited & 2 Others (Miscellaneous Application 236 of 2024) [2024] UGHC 1084 (9 December 2024)

Full Case Text

# THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT UGANDA HOLDEN AT MBALE

# **MISCELLANEOUS APPLICATION NO.236 OF 2024**

## (ARISING FROM LAND SUIT NO. 15 OF 2021)

GREGORY GIDAGUI MAFABI ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. MASH INVESTMENTS LIMITED

### 2. FRANCIS MASHATE WANDUYI

#### 3. NAMBULA STEPHEN MUKHWANA :::::::::::::::::::::::::::::::::::

#### BEFORE HON. JUSTICE LUBEGA FAROUQ

#### **RULING**

#### 1. Introduction

- 2. This application was brought by way of Chamber Summons under section 37 of the Judicature Act Cap 16, Section 98 of the Civil Procedure Act Cap 282, order 43 rules 1-4 and order 52 rules 1-9 of the Civil Procedure Rules SI.71 for orders that- - (a) Execution of the judgment and orders issued in Civil Suit No.15 of 2021 be stayed pending determination of the appeal which the Applicant instituted in the Court of Appeal; - (b) The status quo of the suit land be maintained and the Respondents be restrained from in any way entering or interfering with the Applicant's user rights or evicting the Applicant from the suit land and property pending the determination of the Appeal; - (c) The Respondents are prohibited/restrained from alienating, disposing, selling, transferring, creating any third party rights/interests or in any way dealing with the legal status of the suit land and property pending the determination the Appeal; and - (d) Costs of the application be provided for. $\frac{1}{2}$ - 3. This application was supported by the affidavit and supplementary affidavit of the Applicant where he averred that-

$\mathbf{1}$

- a. On 3rd October 2024, the now retired Mr. Justice Namundi Godfrey determined Land Suit No. 15 of 2021 against him and decreed the suit land to the 3rd Respondent; - b. That he was deeply aggrieved by the said judgment and orders that have divested his legitimate interests in the suit land without any legal justification or basis and for that reason, he lodged in this court a notice of his intention to appeal on 7th October 2024 and a memorandum of appeal to the Court of Appeal and the said appeal is pending determination with a high likelihood of success; - c. However, despite knowledge of the aforesaid appellate proceedings, the Respondents and their agents have on several occasions attempted to enter upon the suit land with a clear intention of causing his eviction and denying the enjoyment of his rights thereon; - d. That on 16th October 2024, the Respondents and their agents entered upon the suit land and property in an attempt to demolish the Applicant's commercial premises and evict the Applicant's tenants thereon purportedly in execution of the judgment in Land Suit No.15 of 2021; - e. That during such entry, the Respondents' agents harassed his agents on the suit property with a view of gaining forceful entry onto the property while insisting that by virtue of the court's judgement, they are entitled to occupation of the suit premises and they actually delivered letters to his tenants to the effect that management of the property had since changed; - f. The acts, intentions and conduct of the Respondents are illegal in so far as the Respondents have not complied with the due process of commencing and/or effecting the lawful execution of the judgment since no notice as required by the law has been issued yet they have attempted to enter upon the suit land with a clear intention of causing his eviction and denying the enjoyment of his rights thereon; - g. That the conduct of the said persons has caused disarray on the premises and there is a clear indication that the Respondents indeed intend to interfere with the prevailing status quo and disentitle the Applicant from enjoying his rights in the said property;

$\overline{2}$

$\mathcal{O}$

- h. He has executed tenancy agreements with various persons on the suit land and if the Respondents are not restrained, his tenants will be denied the enjoyment of their rights which shall in turn expose him to irreparable loss and damage through suits for indemnity and breach of contract; - i. The balance of convenience is in his favour since he is currently enjoying possession of the suit property and he is likely to suffer irreparable injury should the orders being sought hereunder be denied. - 4. This application was opposed by the affidavit of the 3rd Respondent and briefly averred that - a. He is the registered proprietor of the suit land having lawfully purchased the same from the $1^{st}$ and $2^{nd}$ Respondents without any encumbrances registerable; - b. All allegations were investigated by this court in the judgment by His Lordship Namundi Godfrey (as he then was) and found him to be free from any fraud; - c. This application is premature at this stage and ought to be dismissed with costs as no execution process has yet commenced and it does not disclose the required grounds for the grant of the relief for stay of execution; - d. The status quo currently is in favour of the 3rd Respondent who has since taken up the management of the suit property; - e. To confirm the changes, the tenants on the suit property have since entered into tenancy agreements with him for their respective premises which have duly been endorsed; - f. This court lacks the jurisdiction to entertain this application to maintain the status quo as its functus officio; - g. He is already in full control of the suit property as the new landlord; - h. This court allowing this application, it will amount to change in status quo since he is already in possession; - i. On 19th October 2024 at about 04:19 PM, in abide to tamper with his possession and control over the suit land, the Applicant poured bricks onto the suit land;

$\mathfrak{S}$

- j. While acting on the advice of his lawyers and through them he wrote a letter to the Applicant complaining of the said actions; - k. The Applicant is in a way seeking for temporary injunction to which this Court is functus officio having already pronounced its self on the main matter; - 1. The Applicant has not invested anything as the current structures are the same that the $3rd$ Respondent found thereon after his purchase in 2018; - m. The Applicant shall not suffer any irreparable damage if this application is not granted since he is not in possession anymore and he was duly compensated by this court as per the judgment of Justice Namundi Godfrey to a tune of 1,100,000,000 (One billion one hundred Million Shillings); - n. All tenants on the suit property have already entered into tenancy agreements with him as the new landlord; - o. There is no eminent/serious threat of execution to warrant the grant of this application; - 5. The Applicant further filed a rejoinder where he averred that he has invested heavily in the current state of the suit land which investment shall go to waste if the Respondents are not restrained from demolishing the suit premises and exceptional circumstances warranting the grant of this application indeed exist as he shall suffer irreparable loss due to eminent eviction and demolition of his property; - 6. He added that the Respondents shall not suffer any detriment since neither of them has any property in the suit land nor is conducting any activity for gain on the same and neither of the Respondents has enjoyed any rights over the suit property since he entered upon the same. - 7. Legal Representation - 8. Counsel Nangulu Edmond appeared for the Applicant, while counsel Nappa Geoffrey together with Counsel Eric Kiingi appeared for the 3rd Respondent. The $1^{st}$ and $2^{nd}$ Respondents were unrepresented. - 9. At the hearing of this application, before court could grant schedules to the parties to file their respective submissions, counsel for the $3rd$ Respondent intimated to court that they have serious preliminary

$\overline{4}$

objections which warrant court's determination before deriving into the merits of this application. The preliminary objections are-

- (a) That the application is incurably defective arising out of an already *determined suit or matter;* - (b) That the Applicant irregularly acquired an administrative restraint order; - (c) That Miscellaneous Application No. 236 of 2024 is Res judicata; - (d) That Court is functus officio lacking jurisdiction to entertain the instant *Application;* - (e) That no imminent threat to warrant a stay of execution. - 10. I have however studied the submissions of counsel in respect of the above preliminary objections and decided to determine them in the main ruling. - Having made the above finding, counsel requested to proceed by written 11. submissions in respect of the main application and the same was granted by court. Schedules were given by this court and both parties complied. I will consider them in the determination of this ruling. - Analysis of court 12. - Order 43 r. 4 (3) of the Civil Procedure Rules SI.71-1 provides-for 13. grounds to be considered before an application for stay of execution can be granted and these are- - (a) That substantial loss may result to the party applying for *stay of execution unless the order is made* - *(b) That the application has been made without any reasonable* delay. - (c) That security has been given by the Applicant for the due performance of the decree or order as may ultimately be binding upon him/her. - 14. More guidance on the grounds to be considered were given in Kyambogo University V. Prof. Isaiah Omolo Ndiege CACA No 341 of **2013** where court stated that an Applicant for a stay of execution must prove that-

(a) There is serious or eminent threat of execution of the decree or order and if the application is not granted, the appeal *would be rendered nugatory*

$\mathsf{S}$

- (b) That the application is not frivolous and has a likelihood of success. - (c) That refusal to grant the stay would inflict more hardship than it would avoid. - Further grounds were given in Hon Theodore Ssekikubo & Ors V. The 15. Attorney General & Ors Supreme Court Constitutional Application No 03 of 2014, where the Supreme Court held that- - (a) *The applicant must show that he lodged a notice of appeal* - (b) That substantial loss may result to the applicant unless the *stay of execution is granted.* - (c) That the application has been made without unreasonable delay. - (d) That the applicant has given security for due performance of the decree or order as may ultimately be binding upon him. - The above principles/grounds will guide this court in the resolution of 16. this Application.

## 17. Whether there is a pending appeal?

- The Appellant averred under paragraph 17 of the affidavit in support 18. that on the 7th of October, 2024, he lodged a Notice of intention to appeal with this honorable court and further submitted a memorandum of appeal to the Court of Appeal. He attached annexure "H" to buttress his allegations. - 19. I have looked at the said annexure and noted that it was received by this court on 7th of October, 2024. Hence, it has been proved by the Applicant that he intends to appeal against the decision of this court in Land Suit No. 15 of 2021. - Whether this Application was brought without unreasonable 20. delay? - The Applicant averred under paragraph 16 of his affidavit in support $21.$ that a judgment in Land Suit No. 15 of 2021 was delivered on 3rd of October, 2024 and this application was filed and received in this court on 16th of October, 2024. Which means it was brought without unreasonable delay.

- Whether there is serious or eminent threat of execution of the 22. decree or order? - For proper understanding of this principle, I will define the term 23. "execution". It is defined to mean; "enforcement of or giving effect to the judgments or orders of courts of justice or the carrying out some act or course to its completion and putting into force, completion, fulfilment or perfecting of anything or carrying it into operation and effect." (See: Black's Law Dictionary $2^{nd}$ Edition) - In the instant case, the Applicant averred under paragraphs 3, 4 and 5 24. of his supplementary affidavit in support that on the 16th of October, 2024, the Respondents and their agents entered upon the suit land and property in an attempt to demolish the Applicant's commercial premises and evict the Applicant's tenants purportedly in execution of the judgment in Land Suit No. 15 of 2021. - That during such entry, the Respondents agents harassed his agents 25. on the suit property with a view of gaining forcefully entry onto the property. They insisted that by virtue of the court's judgment, they are entitled to occupation of the suit premises. In addition, they delivered letters to his tenants to the effect that management of the property had since changed. Also see paragraphs 26 and 27 of the affidavit in rejoinder for emphasis. - The above averments were confirmed by the Respondent in his affidavit 26. in reply under paragraph 16 when he said that the tenants in the suit property have since entered into tenancy agreements with him in respect of the premises. He attached the said tenancy agreements as annexure K1 to $K116$ and $L1$ to $L5$ . - 27. I have however perused the court record, but I have not found any proof to show that execution of the orders in Land Suit No. 15 of 2021 commenced. In absence of such proof, it is presumed by this court that execution has not commenced and the status quo of the suit property is as it was before judgment. - In the circumstance, I find that there is eminent threat of execution of 28. the decree.

$\overline{7}$

## Whether the Applicant will suffer irreparable injury or 29. substantial loss?

- The Applicant averred under paragraph 7 of the supplementary affidavit 30. in support that he has various projects currently running on the suit premises for his own sustenance which if not protected shall occasion irreparable loss and damage. He added that he is in possession of the suit premises which right he has enjoyed since 21st of April, 2021. - The Applicant further averred under paragraph 9 of the affidavit in 31. rejoinder that since acquisition of the suit property, he has enjoyed control and full rights of the same and currently hosts over 25 tenants with each of them engaging in different commercial activities for their individual benefit. He contended that each of the tenants has a running tenancy agreement and it is his duty to ensure that they continue to enjoy their respective rights over the said property. - He added that he personally has an office on the said premises from 32. which he conducts his ordinary business operations and manage the suit land and property. - 33. The Respondent however on the other hand averred under paragraph 24 of the affidavit in reply that the Applicant shall not suffer any irreparable damage if this application is not granted since he is not in possession anymore. - This court visited the locus in quo and confirmed that the applicant 34. operates a management office on the suit property. Interviews were conducted from several tenants who revealed that the 3rd Respondent has been the new landlord since 24th October 2024. However, although the tenants recognized the 3rd Respondent as their current land lord, the 3rd Respondent did not adduce evidence to prove that the required legal process was followed when he was taking over the said suit property. - Secondly, it was observed by court that the 3rd Respondent was not in 35. physical present on the suit land and did not maintain an office on-site; he operates from an office located outside the property, which means tenants can reach him. - Order 22 rule 7 of the Civil Procedure Rules provides that-36. "Where the holder of a decree desire to execute it, he or she shall apply to the court which passed, or, if the decree has been sent under the provisions hereinbefore contained to another court, then to that court or to the proper officer of that other court." *(Emphasis added)*

Order 22 rule 21 of the Civil Procedure Rules provides that-37.

> "(a) When the preliminary measures, if any, required by the foregoing rules been taken, the court shall, unless it sees cause to the contrary, issue its process for the execution of the decree.

> (b) Every such process shall bear the date of the day on which it is issued, and shall be signed by the judge or such officer as the court may appoint for this purpose, and shall be sealed with the seal of the court and delivered to the proper *officer to be executed." (Emphasis added)*

- From the above quoted provisions of the law, it is clear that before 38. execution is conducted, an application must be made to court which allows the holder of the decree to execute the same. - In the instant case however, although it is averred that the 3rd 39. Respondent is already in possession, he did not attach evidence to prove that the required process of the law was followed. - The legal principle is that court cannot sanction an illegality. The fact 40. that the judgment in Land Suit No. 15 of 2021 was determined in favour of the $3rd$ Respondent, the same did not give him leeway to take the law in his hands. The procedure on how execution should be conducted is well provided for in the law. - Therefore, having not shown that execution of the court orders in Land 41. Suit No. 15 of 2021 commenced, the position known by court is that the status quo of the suit property is still in the possession of the Applicant like it was before judgment. - Consequently, in light of the Applicant's averments, it is obvious that 42. he will suffer irreparable injury or damage.

![](0__page_8_Picture_9.jpeg)

## Whether the Applicant should pay security for costs? 43.

- Counsel for the Applicant submitted that the requirement to deposit 44. security for costs before the Applicant can be allowed to pursue his appeal would hinder his pursuit. - He cited Tropical Commodities Ltd & Others V. International Credit 45. Bank Limited, Miscellaneous Application No. 379 of 2003, where it was stated that- "the policy that mandate security of the entire decretal amount to be paid before the pursuit of an appeal is likely to hinder possible appeal. He further stated that it would be unreasonable to demand the entire *decretal amount from a litigant before the pursuit of his appeal.*" - 46. He also cited John Baptist Kawanga V. Namyalo Kebina and Anor, Miscellaneous Application No. 12 of 2017, where it was held that "the decision whether to order for security for due performance must be made in *consonance with the probability of success".* - Following the orders of court in Land Suit No. 15 of 2021, it is apparent 47. that there is no order requiring the Applicant to pay any money to the Respondents. - In Theromena Katheu Matata & Anor V. Suzaine Mwibanga Rono 48. and Anor Civil Appeal No. E034 of 2024 while citing Gianfranco Manenthi & another V. Africa merchant Assurance Co. Ltd [2019] eKLR stated that-

"The objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine."

From the above decision, it is clear that the issue of whether to issue 49. an order for security for costs or not, is at the discretion of court. Therefore, since there is no decretal sum ordered by the trial court to be paid by the Applicant, I will not exercise my discretion to make orders of security for costs.

## **Preliminary objections** 50.

- The 1st preliminary objection: That the application is incurably 51. *defective arising out of an already determined suit or matter?* - In the view of my discussion in the body of this ruling, it is obvious that 52. this application is not defective since it only seeks to stay execution of the court orders in Land Suit No. 15 of 2021. - This preliminary objection is overruled. 53. - The 2nd Preliminary Objection: That the Applicant irregularly acquired 54. an administrative restraint order. - 55. Counsel for 3rd Respondent submitted that the Applicant without filing any formal application for the grant of interim order ex-parte under Rule 3 of the Civil Procedure (Amendment) Rules, 2019, obtained an Administrative Restraint Order contrary to Rule 3A, (2) (3) (4) and (5) of the same rules. - He argued that the Deputy Registrar without having visited locus in quo 56. to ascertain the alleged status quo issued the Administrative Restraint Order. He cited the case of **Badru Kabelega V. Sepriano Muganga (1992) KALR**, 265 on the purpose of visiting the status quo. - Counsel for Applicant on the other hand opposed the Respondent's 57. submissions and submitted that the procedure adopted to contest the order is irregular, the Respondent has not appealed or in any way sought to review or challenge the said orders by way of a formal application. - Counsel argued that the said Administrative Order was duly served 58. upon the Respondent on the 18th day of October, 2024. If the said party intended to contest the said order, he ought to have lodged a notice of the said intention and filed an appeal according to Order 50 of the Civil Procedure Rules. Counsel contended that one cannot appeal against an Order of court by way of submission disguised as a preliminary objection.

## Determination of court 59.

Order 22 rule 23 of the Civil Procedure Rules provides that-60.

> $(1)$ The court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of the decree for a reasonable time to enable the judgment debtor to apply to the court by which the decree was passed,

or to any court having appellate jurisdiction in respect of the decree or the execution of the decree, for an order to stay the execution, or for any other order relating to the decree or execution which might have been made by court of *first instance,* or appellate court if execution has been issued by the appellate court or is application for execution has been made to it." Also see Rule 3A. (Emphasis added)

Section 37 of the Judicature Act Cap 16 provides that-61.

> " The High Court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided."

- The above provision of the law, gives court wide powers to exercise its 62. discretion to avoid injustice. The said wide powers under section 37 of the Judicature Act were further enlarged by rule 23 which allowed court to grant interim stay of execution for a reasonable time upon sufficient cause being shown. - In the instant case, as averred by the Applicant in his affidavit in 63. support, there was imminent threat of evicting him from the suit land or property which is the reason why he rushed to court for protection. Presumably in the view of the Deputy Registrar following the formal procedure would delay justice. - It should be noted that rules of procedure are handmaidens of justice 64. but not injustice. This means the same must be used to administer justice but not injustice. - In any event, the Deputy Registrar cannot be faulted for having entered 65. an administrative restraint order in the presence of section 37 of the Judicature Act which gives court wide powers. - The above said, I agreed with Counsel for the applicant that this was 66. not the right procedure under which the Respondent ought to have

objected to the decision of the Deputy Registrar. There are clear avenues provided for by the law to challenge the Registrar's orders.

In the circumstance, this preliminary objection is overruled. 67.

- The 3rd Preliminary objection: That Miscellaneous Application No. 236 68. of 2024 is Res judicata - The doctrine of res judicata is founded under section 7 of the Civil 69. Procedure Act cap 282 which provides that-

"No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties *under whom they or any of them claim, litigating under the same* title, in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised, and has been *heard and finally decided by that court."*

In Boutique Shazim Ltd V. Norathan Bhatia and another CA No 36 70. of 2007, it was held that-

> "essentially the test to be applied by court to determine the *question of res judicata is this: is the plaintiff in the second suit or subsequent action trying to bring before the court, in another way* and in the form of a new cause of action which he or she has *already put before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon? If the answer* is in the affirmative, the plea of res judicata applies not only to points upon which the first court was actually required to *adjudicate but to every point which belong to the subject matter of* litigation and which the parties or their privies exercising reasonable diligence might have brought forward at the time".

- In the instant case, the matter before court is an application for stay of 71. execution. Being an application for stay of execution, the applicant averred about the background of the claims in Civil Suit No. 15 of 2021 which to counsel for the 3rd Respondent had already been determined by court. - Counsel for the 3rd Respondent added that whatever the Applicant 72. wants this court to determine in his Misc. Application No. 236 of 2024 strangely arises out of Land Civil Suit No. 15 of 2021 regarding the core

issue of ownership of the suit property which had already been adjudicated upon on 14th of August, 2024. With due respect, I do not agree with counsel's submission.

- By mention about the claims in Civil Suit No. 15 of 2021, the applicant 73. was just giving a background of his application and the same does not amount to arguing the same claims which were determined in Civil Suit No. 15 of 2021. What this application is seeking for right now, is a stay of execution which is clearly provided for under Order 22 rules 23, 26 and Order 43 r 4 of the Civil Procedure Rules SI.71. It is not in any way connected to determining the same claims again. - Therefore, following the meaning of the term res judicata per section 7 $74.$ of the Civil Procedure Act, this 3rd preliminary objection is overruled. - The 4th Preliminary Objection: That this Court is functus officio lacking 75. jurisdiction to entertain the instant Application - Counsel for the 3rd Respondent submitted that this court is funtus 76. officio to determine the instant Misc. Application No. 236 of 2024 because all the matters raised by the Applicant in Paragraph 2 to 15, paragraphs 20 to 24 of the affidavit in support of the Chamber Summons read together with paragraphs 3 to 15 and paragraphs 17 to 32 of the affidavit in rejoinder, were long decided in the final judgment of the court on 14/8/2024 which he now wants this court to adjudicate upon contrary to section 8 of the Civil Procedure Act Cap 282. - However, like I have resolved under the 3rd preliminary objection, mere 77. re-echo of the claims in Civil Suit No. 15 of 2021 under this application has nothing to do with the subject matter of the application. The subject matter of the application is in respect of stay of execution but not determining the ownership of the suit land or property like counsel for the $3rd$ respondent wants this court to believe. - The 4th preliminary objection is overruled 78. - The 5th Preliminary objection: That there is no imminent threat to 79. *warrant a stay of execution* - This objection has already been determined in the body of this ruling 80. and following my findings therein, it is overruled.

$1\Lambda$

In the premises, this Application is allowed. 81.

Costs of this application shall abide the results of the appeal. 82.

$\mathcal{L} = \{ \mathcal{L} \mid \mathcal{L} \in \mathcal{L} \}$

LUBEGA POROUG Ag. JUDGE

Ruling delivered via the emails of Advocates of the parties on $9^{th}$ day of

December 2024

$\mathcal{L}^{\mathcal{L}}_{\mathcal{L}}(\mathcal{L}^{\mathcal{L}}_{\mathcal{L}}) = \mathcal{L}^{\mathcal{L}}_{\mathcal{L}}(\mathcal{L}^{\mathcal{L}}_{\mathcal{L}}) = \mathcal{L}^{\mathcal{L}}_{\mathcal{L}}(\mathcal{L}^{\mathcal{L}}_{\mathcal{L}})$