Mukaaya v Ssekamwa (Civil Application 1139 of 2023) [2023] UGCA 351 (10 October 2023)

Full Case Text

THE REPUBTIC OF UGANDA IN THE COURT OF APPEAT OF UGANDA AT KAMPATA ctvtt APUcATtoN No. 1139 0F 2023 (ARTStNG OUT OF CtVtr AppEAL NO. 1311 OF 2023) (ARTSTNG FROM CtVtrAppuCATtON NO.2762 OF 2023) (ARtStNG FROM CtVtr SUtT NO. 84 OF 2023)

## MUKAAYA WILLIAM APPLICANT

### VERSUS

### SSEKAMWA SANDE

(Administrator of the estate of the late Nadduli Keresipo) RESPONDENT 15

(Application arising from the ruling and orders of the High Court of Uganda at Kampala (Naluzze Aisha Batala, J.) delivered on lOth october 2023)

# CORAM: MOSES KAZIBWE KAWUMI, JA. SINGLE JUSTICE

### RULING

The Application was brought under Section 98 of the Civil Procedure Act Cap 71, Rules 2 (21 of the Judicature (Court of Appeal Rules) Directions S.l. 13-10. 25

The Applicant seeks an order of a temporary injunction to issue restraining the Respondent, his agents, servants or workmen from selling, transferring, distributing, transacting and/or dealing with 10.15 acres of land forming part of land comprised in Busiro Block 40 Plot 50 land at Lutisi, Namayumba town Council, Wakiso District (herein after referred to as "the suit property'') 30

The Applicant seeks an order to issue maintaining the status quo of the suit property until the hearing/determination of the Civil Appeal and provision to be made for costs of this Application. 35

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#### 5 Background

The Applicant sued the Respondent in the High Court of Uganda (land Division) vide Civil Suit No.084 of 2023 seeking among others a declaration that he is the rightful owner of the suit property having obtained it from his late father Nadduli Keresipo as a gift inter vivos. He further sought orders to compel the Respondent to survey off the suit land and handover the certificate of title to him, and costs of the suit.

- 15 On the other hand, the Respondent denied the allegations and contended that as one of the administrators of the estate of the late Nadduli Keresipo, he distributed the estate and gave the Applicant land comprised in Plot 22 Block 40 land at Busiro while the rest of the beneficiaries shared the suit property. - 20 Additionally, the Respondent raised prelimina,"y objections through Misc. Application No.2762 of 2023 seeking for dismissal of Civil Suit No.084 of 2023 on ground that the purported gift inter vivos upon which the Respondents' alleged cause of action arose does not satisfy the legal requirements of a gift inter vivos, hence rendering the Applicant's suit incompetent.

On October LO,2023, the trial Court delivered a ruling upholding the preliminary objection to the effect that Civil Suit No.084 of 2023 was unsustainable on ground that the purported gift inter-vivos upon which the Applicant's cause of action was solely founded does not satisfy the legal requirements of a gift inter-vivos. The suit was accordingly, dismissed with costs to the Respondent.

35 On October 12,2023, the Applicant received a letter from Ngamije Law Consultants and Advocates acting on behalf of Mutesasira Ronald demanding for vacant possession of the suit property. The Applicant lodged a notice of Appeal on October 24,2023 and filed this Application on October 3O,2023.

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5 Grounds of the Application

The grounds of this Application are set out in the Notice of Motion as follows;-

1. That the Applicant filed Civil Suit No. 084 of 2023 in the High Court of Uganda for orders to compel the Respondent to survey off 10.15 from the suit property.

2. That the said Suit was dismissed on a preliminary point of law and being dissatisfied with the ruling, he filed an appeal which has a high likelihood of success.

- 3. That he has been in physical possession and utilisation of the suit land for over 30 years, growing seasonal crops and deriving income and sustainability. - 4. That he will suffer irreparable loss if the Application is rot granted. - 5. That there is eminent danger as the Respondent threatened to evict him, sell, distribute and transact in the suit property

hence the need to maintain the status quo.

5. That the Appeal will be rendered nugatory if this Application is not granted and the Respondent will not be prejudiced if the Application is granted.

The application is supported by the affidavit of the Applicant, Mukaaya William that expounds on above grounds.

- The Respondent, Ssekamwa Sande opposed the Application through his affidavit in reply filed on November 15,2023. The thrust of iris contention is that:- 35 - 1. The application is incompetent since there is no valid Notice of Appeal from which the Application arose, the Notice of Appeai was never served upon him and that the current status quc is that the suit property is owned by third parties who are not parties to the suit.

## Page 3 of 11

- 5 2. That the late Naduli Keresipo died intestate leaving 2 properties to wit 10 acres in respect to land comprised in Busiro Plot 22 Block 40 which was transferred to the Applicant and 10.15 acres in respect to Busiro Plot 50 Block 40 which was transferred to other beneficiaries. - 3. That the suit land was already distributed and some of the beneficiaries are already in physical possession while others sold off their shares. - 15

4. That the Applicant was removed from the suit land on May 4, 2023, thus the grant of an injunction would instead change the status quo.

ln rejoinder, the Applicant averred that the affidavit in reply is full of falsehoods, baseless allegations and only intended to mislead Court. That the Notice of Appeal was duly served upon Counsel for the Respondent, that he is in occupation of the suit property, that the status quo of the suit property has never changed while the balance of convenience tilts in his favour. 20

### Representation

When the Application came up for hearing on September 5,2024 learned counsel Aggrey Bwire appeared for the Respondent, the Respondent was also in Court while the Applicant and his counsel did not attend. Both counsel had filed written submissions, which this Court adopted and considered.

### Submissions of the Applicant

Counsel submitted that for an injunction to be granted, the Applicant must satisfy Court that he has a prima facie case, that there is an eminent danger and that he would suffer irreparable injury if such injunction is denied. That where Court is in doubt, the application will be decided on the balance of convenience. He cited Geilla Vs. Cassman Brown & Co. tTD (1973) E. A 358 to support his argument.

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5 While referring Court to paragraph 5 and 6 of the affidavit in support of the Application, counsel submitted that the status quo is that the Applicant is in possession and utilisation of the suit property.

counsel submitted that the Applicant demonstrated the existence of a prima facie case since there is an Appeal with a likelihood of success. The grant of the Application will prevent the appeal from being rendered nugatory. 10

- Regarding eminent danger, Counsel referred Court to paragraph 7 of the affidavit in support of the application arrd annexture marked "C" which required him to vacate the suit property with immediate effect. He thus prayed to Court to issue an order maintaining it. 15 - As regards irreparable damage, Counsel referred Court to paragraph 10of the affidavit in support of the application and submitted that he grows seasonal crops on the suit property and that if the status quo is not maintained, he will suffer substantial injury that can\_not be adequately compensated by way of damages. 20 - On the balance of convenience, he submitted that it favours the Applicant who has possession and utilisation of the suit property. counsel referred Court to paragraphs 9 and 10 of the affidavit in support of the application to advance his argument. Counsel urged Court to allow the application with costs to the Applicant. 25

### Submissions for the Respondent 30

ln reply, counsel cited rules 2(2),6(2) and submitted that they give court discretionary powers to grant an injunction and that it is not a matter of right. He further cited Crane Bank [imited (ln Receivership) Vs. Sudhir Ruparelia & Anor, SCCA No. 32 of ZO2O to support his proposition as well as the principles to be considered for applications of this nature which include.

i. That the Applicant must establish that the appeal has a likelihood of success or a prima facie case of his right to appeal

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- ii. That the Applicant will suffer irreparable damage; 5 - iii. That the appeal will be rendered nugatory if a stay is not granted, and; - 10

iv. lf either of the above has not been established, Court must consider where the balance of convenience lies.

As regards the competence of the Appeal, Counsel submitted that there is no valid Notice of Appeal from which this Application can arise. Counsel submitted that the Notice of Appeal offends rule 76

(5) & Form D in the 1't Schedule to the rules of this Court. 15

Counsel submitted that the non-compliance with rule 76 (5) of the rules of tis Court impairs the competence of the Appeal. He cited Herbert Semakula Musoke & Ano. Vs. Lawrerrce Mabanda & 2 Ors SCC Appln No. 22 ol 2Ol9 to support his argument and prayed that Court finds that there is no prima facie appeal.

Counsel also faulted the Applicant for failure to serve the Notice of Appeal with in 7 days contrary to rule 78 (1). He submitted that the effect of the failure to serve within the required time is that the Notice of Appeal is invalid.

- success. 2s Counsel cited the authority of Davit Otuket Vs. Okonyo Mustafa & Anor CA. Civil Application No. l7O of 2009 to support is argument and invited Court to find that the Appeal has no likelihood of - Counsel further submitted that the suit property was distributed to the beneficiaries some of whom took possession while others disposed-off their shares to third parties who are not party to this Appeal. He attached annexture E1 and E2 which are minutes of the meeting showing the shares received by each beneficiary. 30

@ 5 Counsel further attached annexture F which is a copy of a Certificate of title in respect to Plot 22 Block 40 showing a transfer of the said plot from the Respondent to the Applicant on 17th January 2O\7 as the Applicant's share. He thus invited Court to find that there is no status quo to be maintained and the grant of this Application would mean that Court exercised its discretion injudiciously. He cited Kampala Financial Services LTD and Anor Vs. Hussein Muhamed CAC Application No. L46 of 2O2L to support his argument. 10

Relatedly, as to whether the Appeal has high chances of success, Counsel submitted that there is no Memorandum of Appeal attached to the pleadings to prove that there is a prima facie case and or to enable Court to examine the allegation. He cited Osman Kassim Vs. Century Bottling Co. LTD SC. Civil Appln No. 34 ol2OL9 and Yahaya Yusufu & 2 Ors Vs. Sauda Nabunya & 3 Ors CA. Civil Appln No. 89 of 2023 for this proposition and prayed that Court finds that the Appeal has no chances of success. 15 20

As regards irreparable damage submitted that the suit property has already been alienated and any orders granting this application would be condemning third parties un-heard. Counsel further submitted that the seasonal crops can be atoned by way of damages. That the injury therefore is reparable as any loss of crops can be compensated by way of pecuniary damages.

On the balance of convenience, counsel submitted that Court needs not to consider this requirement but even if it did so, it tilts in favcur of the Respondent who has a judgment in his favour as against the Applicant who has not filed a Memorandum of Appeal. lt was submitted that only the Memorandum of Appeal would enable Court to consider whether the grounds of Appeal disclose a prima facie case or not. On that premise, Counsel summited that the balance of convenience and prayed that this Court finds as such. 30

(

## 5 Submissions in rejoinder

ln rejoinder, counsel for the Applicant submitted the there is a competent Notice of Appeal as it was served upon Counsel for the Respondent who refused to acknowledge service, it was later served on the Respondent who refused to acknowledge service and then served on the LC.1 chairperson for transmission to the Respondent. He referred Court to paragraph 5 of the Affidavit in rejoinder.

Counsel also distinguished the case of David Etuke Vs. Okonyo Mustafa & Anor (Supra) on ground that the Applicant in the said application did not take an essential step while in the instant application, Counsel for the Respondent as well as the Respondent declined service of the Notice of Appeal which prompted the Applicant to serve the LC1 chair person.

He prayed that the preliminary point of non-service of the Notice of Appeal be disregarded.

He also submitted that the Notice of Appeal does not offend rule 76 (5) of the rules of this Court as the inclusion of the word Appeal was for purposes of ensuring that the Appeal gets a Court number and that in any event, it did not prejudice the Respondent in any way. That the objection regarding the competence of the Appeal is a mere 20

technicality while justice should be administered without due regard to technicalities. 25

As regards the status quo, Counsel submitted that the Respondent and other family members do not have any development on the suit property and have never been in occupation of it. That the Respondents' allegations are un-substantiated and lack proof.

Counsel distinguished the authority of yahaya yusufu & Ors Sauda Nabunya & 3 Ors (Supra) that it was an application dismissal of an appeal while this Application seeks an injunction. Vs. for

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5 Counsel submitted that the Applicant will suffer irreparable damage and that the balance of convenience tilts in favour of the Applicant. Counsel for the Applicant prayed that the application is granted so as not to defeat the ends ofjustice.

## Consideration of Court.

- I have duly considered the application which according to the title was brought under rule 2 (2) of the Judicature Court of Appeal) Rules Directions and all enabling laws. I have equally considered arguments of both Counsel, the authorities cited as well as the record of the lower Court. 10 - The law governing applications for either injunctions, stay of execution, stay of proceedings or a combination of them is set out in Rule 6 (2) (b) of the Rules of this Court which provides as follows-15

6 (2) "Subject to sub-rule (1) of this rule, the institution of an appeal shall not operote to suspend ony sentence or stoy execution but the Court may-

a).. ..

b)ln ony civil proceedings, where o Notice of Appeol hos been lodged in accordonce with Rule 76 of these Rules, order o stoy of execution, or injundion or stoy proceedings as the Court may consider just."

Rule 75 has got three sub-rules. Sub-rule (1) which is most relevant here reads -

"Any person who desires to oppeol to the Court shall give notice in writing which sholl be lodged in duplicate with the Registrar of the Court of Appeol."

Clearly there are two important elements which must be fulfilled before an application for stay or for injunction may be entertained, namely-

1) There must be a valid Notice of Appeal in writing.

2) lt must be lodged in accordance with Rule 76 which means it must be lodged within the prescribed time.

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5 Aside from the Notice of Appeal having not been served within the stipulated time, there is need to first interrogate whether the Applicant had a right to Appeal against the ruling as a matter of right.

10 The genesis of this Application is a dismissal order from the ruling of my learned sister Hon. Lady Justice Naluzze Aisha Batala dated 10170/2023. The appeal emanated from a preliminary objection raised by Counsel for the Respondent under Order 6 Rule 29 of the Civil Procedure Rules S.l. 71-1.

- 15 It is worth noting that Appeals against rulings under Order G rule 29 are not as of right. See Order 44 rules 1 (1) and (2) CPR. The effect is that the Notice of Appeal was filed in a matter that is not amenable to an automatic right of Appeal since the requisite leave to Appeal was never sought. - 20 According to Attorney GeneralVs. Shah (No. ) [1971] at page 50 Spry Ag. P held:-

"lt hos long been established and we think there is ample authority for soying thot oppellote jurisdiction springs only from stotute. There is no such thing as inherent appellote jurisdiction"

The effect of filing appeals from rulings arising from interlocutory application without securing the leave to appeal was well settled in the case of [ukwago Erias & Anor Vs. Attorney General & Another, 5C. Civil Application No. 6 of 2014 where it was held that;-

"The right of oppeal is o creoture of stotute. There is nothing known in law as an inherent right of oppeal. The legol foundotion for opplicotions for stoy of execution pending appeol is the right of appeal to the proper Court ond the foct thot the Notice of Appeol hos been filed in thot Court. Where the Notice of Appeal has been filed but the right of appeol does not exist, the Notice of Appeol is incompetent

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and con-not form the bosis for on opplicotion for stay of execution pending oppeol; os there is no pending oppeol."

It follows that, where a Notice of Appeal has been filed but the right of appeal does not exist, the Notice of Appeal is incompetent and can-not form the basis for an application for a temporary injunction pending appeal; as there is no competent pending appeal.

The inherent powers of Court under rule 2 (2) rules of the Court cannot be invoked bythe Court in the absence of the right of Appeal.

Premised on that alone, I hold that this Application for a temporary injunction is incompetent. I do not see any reason to delve into the

15 merits of the Application in the absence of a valid appeal as it would be futile to entertain an interlocutory application that is by its nature dependent on an incompetent Appeal.

ln the result, this Application is dismissed with costs to the ResPondent'

a-. Dated and delivered at Kampata ttris.!{[v ot...\$ph\*t -...:oz+.

Moses Kazibwe Kawumi JUSTICE OF APPEAL