Magezi v Babigumira and Another (Election Petition Appeal Miscellaneous Application 6 of 2021) [2021] UGSC 75 (19 April 2021)

Full Case Text

#### THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KOLOLO

Coram: Tuhaise, f SC (Single fustice)

Miscellaneous Application No. O6 of 202'1.

(Arising out of Miscellaneous Application No. 5 of 2O2l)

(Arising out of Civil Appeal No. 14 of 2O2O)

]ohn Magezi ...... Applicant/2"d respondent

versus

1. Andrew Babigumira

2. Wavenets Communications Ltd Respondents/Appellants

# Ruling of Percy Night Tuhaise, fSC.

This application was brought under Rules 2 (2), and 6 (2) (b) of the Judicature (Supreme Court Rules) Directions SI 13-11, for orders that:-

- 1. An Interim Order injunction does issue restraining the Respondents/Appellants, their agents, servants, employees, assignees or any authorized Persons from entering, accessing, occupying, developing and or trespassing on the Applicant/2'a Respondent's property comprised in Kyadondo Block 194 Plot 45 land at Kungu in whatever way pending final determination of the temporary injunction or until further orders of this honourable court. - 2. Costs of this application be provided for.

a )

The grounds upon which the application is based are contained in the Notice of Motion and in the affidavit in support of the application swom by the applicant, but briefly, are that:-

16;

(a) The Applicant/2nd respondent is the registered proprietor of the premises comprised in Kyadondo Block 186 Plot 45 land at Kungu.

(b) The Respondents/Appellants filed Civil Suit No. 344 of 2013 against the Applicant/2"a Respondent & 2 Others for, inter alia, a declaration that the sale of suit land to the Applicant/Z"d Respondent was fraudulent, unlawful and illegal.

(c) On 20tt January,2017, the High Court of Uganda at Kampala decreed the suit property to the Applicant/2na Respondent and dismissed the respondents/appellants' suit for lack of merit with costs to the Plaintiff.

(d) Being dissatisfied with the judgment in the above suit, on Q\$d February, 2017, the respondents/appellants filed in the Court of Appeal of Uganda, Civil Appeal No. 258 of 2017, which was dismissed with costs on 20th July,2020 for lack of merit.

(e) Being dissatisfied with the judgment of the Court of Appeal, on l.5th September, 2020, the Respondents/Appellants lodged Civil Appeal No. 14 of 2020 in this honourable court which is still pending determination but they did not apply for stay of execution thus, the Applicant continued to occupy and utilize the suit property.

(f) Later on, the Respondents/Appellants illegally, contemptuously and without any court order or colour of right trespassed onto the Applicant's land and erected thereon illegal structures to wit, houses and toilets.

(g) Despite several warnings and demands from the Applicant/2na Respondent, the Respondents have refused, ignored, failed and/or neglected to cease and desist from trespassing on the said land, and have adamantly refused, ignored and failed to vacate and remove their illegal structures from the suit land, but instead, they have continued to utilize the same thus altering its status quo.

(h) The balance of convenience is in favour of the Applicant who is being denied peaceful and vacant possession and enjoyment of his land by the Respondents.

(i) The applicant has filed a Miscellaneous Application No. 5 of 2021 seeking a declaration for contempt of the Court's orders, and a Temporary Injunction both of which are pending hearing before this honourable Court.

0) Tf," Respondents/Appellants filed Civil Appeal No. 258 of 2O17 which is pending determination from which this application emanates.

(k) There is an imminent threat that the status quo of the suit land will be altered.

(l) It is in the interest of justice that this application be granted pending the termination of the Appeal.

(m) It is just and equitable that this application be granted.

# Background '\i-

The brief background to this application, as deduced from the record, is that 1r\* Respondent, then a registered proprietor of land comprised in Kyadondo Block 194 PIot 45 land at Kungu (suit land) gave a power of attorney to the 2nd Respondent to use the suit land as security for a

loan facility of Uganda Shillings 100,000,000/= (one hundred million) from Global Trust Bank. He surrendered the certificate of title for the said land to be used as security for repayment of the loan. Eventually the Bank advertised, sold off by public auction, and transferred the suit land to the Applicant on grounds that the 2na Respondent had failed to honour the mortgage and credit facility agreements. The Respondents contested the sale of the suit property by filing High Court Civil Suit No. 3t14 of 2013 against the Bank and others, who included the Applicant, but the suit was dismissed. The Respondents appealed against the High Court decision to the Court of Appeal uide Civil Appeal No. 258 of 20L7 but the appeal was dismissed. The Respondents then filed Civil Appeal No.14 of 2020 to this Court against the decision of the Court of Appeal, and it is pending hearing.

f,f(A

The instant application arises out of the said two appeals, and out of Miscellaneous Application 5 of 2021 which is the Applicant's application for Temporary Injunction against the Respondents pending before this Court.

### Representation

At the hearing of this application, the applicant was represented by Mr. Amar Ali of M/S Kabayiza, Kavuma, Mugerwa & Ali Advocates. The respondents were represented by Mr. Kiiza Simon of M/S Kiiza & Co. Advocates.

### Applicant's submissions

The Applicant's Counsel, in brief, submitted that despite the decisions of the lower courts, the Respondents have, without colour of right, erected structures on the suit land, as shown in annexure E to the supporting affidaviU that despite several warnings, the Respondents have refused to stop constructing; that the balance of convenience is on the Applicant because he is the registered owner of the land yet is being denied vacant and peaceful possession of the suit land. He contended that because of the construction on the land, the status quo is being altered which affects the Applicant's interests.

Counsel also submitted that the Applicant had filed Miscellaneous Application No. 5 of 2021 seeking a temPorary injunction and contempt of court orders against the respondent. He contended that the suit property is in imminent danger and granting the application will help to preserve the status quo. He cited the cases of Alcon International Ltd versus The New Vision Publishing Co. Ltd & Another, Supreme Court Civil Application No. Ol ol2OlO; and Hwan Sung Industries Ltd versus Tojdin Hussein & 2 Others, Supreme Court Civil Application No.19 of 2008 to support his application' He prayed that the application be granted.

#### Respondents' submissions

Counsel for the respondents opposed the application and submitted that the applicant has no locus standi to file an application of this nature under the law as well as under rule 6 (2) (b) of the Judicature (Supreme Court) Rules. He relied on the case of Lukwago Erias (Lord Mayor KCCA) versus Attorney General & Another, Supreme Court Civil Application No.06 of 2014, where Court highlighted the conditions to be fuHilled, that is, there must be a valid notice of appeal under Rule 72 of the Rules of this Court. Counsel argued that the Applicant," ah",r. U-Respondent in the pending appeal and the orders of the High Court |' 'l and the Court of Appeal were in his favour; that he did not file a Notice of Appeal as required. Counsel contended that, in essence, the

Applicant wants to stay his orders which are in his favour, which is selfdefeating.

Counsel maintained that ordinarily court is supposed to stay its own orders. According to Counsel, the order which stands is the decree, annexure B to the Applicant's application, which is an order dismissing the suit. He argued that there is no order being executed against which a court can issue an injunction order; that court orders cannot be in vain. He relied on Zubeda Mohamed & Another versus Laila Kaka Wallia & Others, Supreme Court Civil Reference No. 07 of 20L6 which lays down the conditions for interim orders of stay. He concluded that the applicant is not the person anticipated in Rule 6 (2) (b) of the Rules of this Court.

Regarding the requirement of a substantive applicatiory Counsel conceded that there is a pending substantive application from which the instant application arises.

Regarding the requirement of a serious threat of executiory Counsel submitted that the Applicant was the successftrl party at the High Court and the Court of Appea} that, in essence/ it should be the Applicant to apply for execution not the Respondent. He contended that the Applicant's submission that the Respondent is interfering with the applicant's vacant possession is a material falsehood. He referred this Court to annexure A to the Respondents' affidavit in reply and submitted that the 1s respondent has occupied the suit land for 15 years without intemrption. He also submitted that the Applicant does not even know the boundaries of the suit land and is just misleading cour! that the suit land is not even developed and this is shown in annexure B to the affidavit in reply. . G^

Counsel contended that the application is an abuse of court process intended to get vacant possession; that in essence it defeats maintaining the stnfus tpto. He submitted that the orders being stayed have never been granted by the court and can only be stayed in the court of first instance.

Counsel prayed that the application be dismissed with costs to the respondents.

### Applicant's submissions in Reioinder

Counsel for the Applicant submitted that the report marked annexture B is dated 30th April 2021 which brings into contest the veracity of the survey report and all the submissions attached to it. He claimed he had no time to file an affidavit in rejoinder because he was served late at 4.40 pm.

Regarding the existence of a valid Notice of Appeal as required under Rule 6 (2) of the Supreme Court Rules, Counsel referred this Court to annexure D to the Applicant's supporting affidavit and submitted that there is a Notice of Appeal and a Memorandum on Appeal on record filed by the Respondents, that it does not matter which party filed it. He cited the case of Alcon International Ltd versus The New Vision Pubtishing Co. Ltd & Another (supra) and submitted that the Respondents' act of constructing on the suit land constituted a threat of execution. He submitted that the Applicant is in occupation of the suit land and reiterated his prayers that this application be granted.

### Consideration of the Application

The law goveming applications for either iniunctions, stay of executiory a stay of proceedings or a combination of them is set out in Rule 6 (2) (b) of the Rules of this Court which reads as follows:-

6 (2) "subject to sub-rule @ of this rule, the institution of an appeal shall not operate to suspend any vntmce or stay execution but the Court may -

\ \AA b) ln any citil proceedings, tultrc a Notice of Appeal lws fuen ldged ilt accordance uith Rub 72 of tlux Rules, order a stny of execution, or injunction or stny proceedings as tlre Court nay consider just"

The instant application is for an interim order of injunction, pending determination of the main application, against the Respondents who are the Appellants in the pending appeal. The position of the law on interim orders is that the order should only be granted subject to the well settled conditions, for a short time until a named day or further order of the court, pending determination of the main application. It is granted by a single Judge exercising the Court's inherent powers under Rule 2 (2) of the Rules of this Court to help the parties to preserve the status quo and then have the main issues between them determined by the full Court under the same Rules. This principle has been expounded by this Court in a number of decisions including Crane Bank Ltd (In Receivership) versus Sudhir Ruparelia & Another, Supreme Court Civil Application No. 33 of 2020; Mohammed Mohamed Hamid versus Roko Conshuction Ltd, Supreme Court Miscellaneous Application No. 23 of. 2017.

There are three conditions to be fulfilled to justify the grant of an interim order, that is:-

- 1. A Competent Notice of Appeal; - 2. A substantive application; and - 3. A serious threat of execution.

See Lukwago Erias (Lord Mayor KCCA) versus Attorney General & Another, Supreme Court Civil Application No. 05 of 2O1.4; Zubeda Mohamed & Another versus l-aila Kaka Wallia & Others, Supreme Court Civil Reference No. M of 2A16. I will proceed to address each requirement separately and apply it to the irstant applicatiory based on the adduced evidence, the law and submissions of both parties.

On the requirement for a competent Notice of Appeal, the Respondents maintain that since the Applicant did not file a Notice of Appeal as required, he has nolocus standi to Present this application under the law as well as under Rule 6 (2) (b) of the Judicature (Supreme Court) Rules. The Applicant argues however that it does not matter who filed the appeal for one to apply for interim relief.

The question to address on this point is, does the requirement that there must be a competent appeal mean that the appeal must have been filed by the person applying for interim relief (applicant)? Rule 6 (2) (b) requires that " a Notice of Appeal lus bor lodged in accordnnce uith Rule 72 of tfu\* Rules." The said Rule does not expressly indicate which party must have lodged the appeal, so the matter is left to the interpretation of the Court depending of the circumstances of each case. ,,.\6

In my considered opinion, based on the wording of the Rule, as long as there is a competent appeal in place, any Party should in the interests of justice, apply for interim relief which this Court has discretion to grant. Rule 2 (2) of the Rules of this Court empowers this Court to invoke its inherent powers to make such orders as may be necessary for achieving the ends of justice or to prevent abuse of the process of court. Based on this, in the circumstances of this application where an appeal has already been lodged pending hearing, I would consider it an absurdity, which would lead to multiplicity of suits if not an abuse of court process if the legal position was that where there is already a pending appeal, as is the case in this application, the party which has not filed the appeal would have first to file his or her own appeal for purposes of seeking interim or interlocutory relief for purposes of

preserving the *status quo*, pending the hearing of an appeal on the same subject matter.

I would in that light, and in the circumstances of this application, agree with the Applicant's Counsel that it does not matter who filed the appeal. I am fortified by this Court's decision in Alcon International Ltd versus The New Vision Printing and Publishing Co. Ltd & **Another (supra)** where Okello JSC, sitting as a single Justice, proceeded to consider the merits of an application for interim order after establishing that a Notice of Appeal had been lodged in accordance with Rule 72 of the Rules of this Court. Just like in the instant application, the Applicant in that matter was not the party that lodged the appeal, but was rather the respondent in the same main appeal.

In this application, the evidence on record, in form of Annexure D to the Applicant's supporting affidavit, shows that there is a Notice of Appeal and a Memorandum on Appeal on record filed by the Respondents vide Civil Appeal No. 14 of 2020. The Applicant's averment in ground (j) of the Notice of Motion and paragraph 12 of the affidavit in support that the pending appeal is No. 258 of 2017 must be an error, for that number applies to the appeal that was disposed of by the Court of Appeal, as deduced from annexure C to the supporting affidavit. NRA

The Respondents' Counsel, in his submissions, also maintained that by applying for an interim order the Applicant wants to stay his orders which are in his favour; that it is self-defeating since ordinarily court is supposed to stay its own orders; that other than the order dismissing the suit (annexure B), there is no order being executed against which a court can issue an injunction order; and that court orders cannot be in vain.

The Respondents' Counsel's foregoing submissions, seem to suggest that the application for an interim order of injunction can only be applied against execution of court orders. I do not agree with Counsel's position. The orders sought by the applicant, as extracted from the Notice of Motion, were for:-

" An lnterint Order injurtction. . .restraining the Re spondents/Appellants, tlrcir agents, seruants, employ ees, assignees or any authorize persons from entering, accessing, occupying, detteloping and or trespassing on the Applicantl2'd Respondent's property compised in Kyadondo Block L94 Plot 45 land at Kungu . . .pending final deternrinqtion of the temporary injunctiort or until further orders of tltis honourable court."

Thus, from the reading of the Notice of Motion, it is clear the Applicant seeks an interim order of injunction to restrain the Applicant from entering, occupying or trespassing on the suit property, and not against execution of a court order. Rule 6 (2) (b) of the Rules of this Court, upon which the instant application is based, states that this Court may:-

"...1n any cidl proceedings, ulvre n Notice of Appeal lns been lodged in accordance utth Rub 72 of tlex Rules, order a stay of execution, or injmction or stay proceedings as the Court may consider iust." (emphasisminE.

Thus, Rule 6 (2) (b) covers situations of stay of execution, or iniunctions, or stay of proceedings

The Applicant therefore has the locus stnndi to present the instant application under Rule 5 (2) (b) and Rule 2 (2) of the Rules of this Court.

Regarding the second requirement that there must be a substantive application, the evidence on record is that the Applicant has filed Miscellaneous Application No.5 of 2021, seeking a temporary injunction

and contempt of court orders against the Respondent. The Respondents' Counsel conceded in his submissions that there is a substantive application on record. This requirement is therefore not disputed by the Respondents. This Court can safely make a finding that the requirement of a substantive application filed by the Applicant has been fulfilled.

On the requirement of a serious threat of execution, this Court, in Alcon International Ltd versus The New Vision Publishing Co. Ltd & Another (supra), relied on an earlier decision of Hwan Sung Indushies Ltd versus Toidin Hussein and 2 Others (supra) where the issue of merit of an application seeking an interim order was considered. After establishing that the notice of appeal had been lodged in accordance with rule 72 of the Rules of this Court, the Court stated on merit as follows:-

" . . . . . .. fo, an interim order of stay, it sufrces to slrcw that a substantipe application, is pending and tlnt there is o serious tlreat of execution before the heaing of the pending substantitre application.

It is not necessary to pre-empt consideration of matters necessary in deciding ulrcther or not to grant tlrc sttbstantiue application for stay."

Thus, the legal position is that, upon being satisfied that the notice of appeal has been lodged in accordance with rule72 of the Rules of this court, it is only necessary for the court to satisfy itseli on evidence, that a substantive application is pending and that there is a serious threat to do the act complained of before the substantive application is heard and determined. Lodgment of the notice of appeal in accordance with rule--- 72 ensures the competence of the pending substantive application. ,,"r/t

Having established on evidence that the notice of Appeal was lodged in accordance with Rule 72 of the Rules of this Court, and that there is a pending substantive application, the remaining issue to consider is whether or not there is a serious or imminent threat to do the act complained of before the substantive application is heard and determined.

In this application, since the interim order does not relate to stay of execution, but rather, to an injunction restraining the Respondents from interfering with the suit [and, the question will be whether, as alleged by the Applicant, there is such imminent or serious threat of entering, accessing, occupying, developing and or trespassing on the suit land comprised in Kyadondo Block 194 Plot 45 land at Kungu.

o The Applicant's evidence on the alleged imminent or serious threat of, among others, occupation or trespass is contained in paragraphs6,7,8, 9 and 10 of his affidavit in support of the Notice of Motion' The evidence is that the Applicant continues to occupy and utilize the suit property; that later on the Respondents illegally trespassed on the land and erected thereon illegal structures, that is, a house and a toilet (annexure E); that the respondents have despite warnings, adamantly refused to vacate and remove their illegal structures; that the balance of convenience is in the Applicant's favour; and that there is imminent threat that the status quoof the suit land will be altered. \ff

The Applicant's affidavit evidence was however rebutted by the Respondents through the 1't Respondent's affidavit in reply. It states in paragraphs 4, 5, 6,8, 12 and 17 that the 1't Respondent has been in occupation of the suit land since 2006 when he acquired the same, and is therefore not trespassing on iu that the Applicant has never been given vacant possession of the land by the Bank which had sold it to him without foreclosing the mortgage; and that the suit land is not developed with any structures but is planted with trees namely coconut, pine and exotic grass and flowers which are about fifteen years

old. Photographs of the planted trees and a survey report were annexed to the affidavit in reply as A and B respectively to support the L't Respondent's averments.

The Applicant's Counsel submitted in rejoinder that the date of the Survey Report's being 30th Apr1l2021puts in contest the veracity of the Report and all submissions on it, and maintained that the Applicant was in occupation of the land.

he is in occupation of the same. YaA After carefully addressing the affidavit evidence on record as a whole and in totality, I am of the considered opinion that the Applicant's evidence that he is in occupation of suit land is not credible. Other than averring in paragraph 6 of his supporting affidavit that he is in occupation of the suit land, he has adduced no credible evidence to support his averments. Annexure D (memorandum of appeal) which he attached in support of his averments in paragraph 5 only serves to show that the Respondents in this application filed an appeal to this Court against the Court of Appeal decision. It does not in any way show that he is in occupation of the suit property as he claims. The evidence of ownership or being registered proprietor of the suit land in form of annexure A to his supporting affidavit does not necessarily mean that

The 1't Respondent rebutted the Applicant's averments of being in occupation of the suit land with credible evidence showing that he (1't Respondent) has been in occupation of the land since 2006 when he acquired it, as revealed by the annexures A and B to the affidavit in reply showing the trees he planted on it, and its location.

The Applicant's rejoinder did not rebut this evidence of effective occupation of the suit land by the 1'tRespondent. Instead, the Applicant contested the Survey Report (annexure B to the affidavit in reply), based on it being dated 30th April2021'. Indeed, it is a fact that annexure B is shows that it was wrongly dated, since the said date was yet to pass by the time this application was heard. However, much as I will refrain from speculating why it was dated with a date that is yet to Pass, it does not negate the fact that it was produced in this Court when the application was being heard. The Appticant did not seriously discredit its authenticity, as well as the authenticity of the annexed photographs' The Applicant's other plea that he had no time to file an affidavit in rejoinder was, in my opinion, not plausible since he did not raise it at the commencement of hearing of this application, which would have been a justification for this Court to allow him time to file such rejoinder before delving into the hearing.

Thus, based on the evidence adduced before this Court, the Applicant's affidavit evidence that he is in possession or occupation of the suit land was effectively rebutted by the Respondents who, in addition, adduced credible unrebutted evidence that the 1',Respondent was in fact the one in effective occupation of the suit land. The balance of convenience under the given established circumstances, would favour the Respondents more than the Applicant. i\A,r

In addition, the Applicant has adduced no evidence of any imminent threat of the Respondents' entering, accessing, occupying, developing and or trespassing on the suit land. Though he avers in paragraph 10 of his supporting affidavit that there is imminent threat that the status quo of the land will be altered, his other averments in paragraphs 7,8 and 10 of the same #fidavit, together with its annexure E, is that the Respondents have erected iltegal structures on the suit land, and have refused to vacate and remove their illegal structures, and further that the status quohas already been altered'

On basis of the Applicant's averments alone, even if such evidence was to be credible, it would serve no purpose to grant an interim order of injunction where the Applicant's own evidence is that the status quo sought to be preserved by the Applicant is already altered by the Respondents' construction of an illegal structures and refusal to vacate the suit land. The Applicant's averments suggest that the application is overtaken by events. The question of imminent threat would therefore not arise in circumstances where the acts complained of have already been committed. Courts do not grant orders in vain.

For those reasons, based on the adduced evidence and the law applicable, I decline to allow this application. Costs of this application will abide the outcome of the substantive application.

Dated at Kampala this ... $\mathbb{L}$ day of $\mathbb{L}$ 2021.

Priorling

**Percy Night Tuhaise** Justice of the Supreme Court

Delivered 19/4/2021

Yout.