Namukasa v Namayanja & 4 Others (Civil Application 391 of 2024) [2024] UGCA 292 (11 October 2024)

Full Case Text

#### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA ctvtl APPLICATIoN NO.391 0F 2024

#### ARISING OUT OF CIVIL APPEAL NO.591 OF 2024

5 (ALSO ARISING OUT OF MTSCELLANEOUS APPLICATION NO. 1143 OF 20241

(ARTSING OUT OF CIVIL SUlr NO. LLLT OF 2023)

ROSE N. NAMUKASA

10 (ADMTNISTRATRIX OF THE ESTATE oF THE LATE M. N. SESIRIYA) APPLICANT

#### VERSUS

- 15 1. NAMAYANJA MAYANJA GRACE (DEFENDING THROUGH HER LAWFUL ATTORNEYS, SUZAN MUNABI, NANTALE AGNES AND BAKAHUNA JOSEPH} - z. GEO OILS (U) LTD - 20 3. KIBWIKA GEOFREY

4. NCBA BANK UGANDA LIMITED

5. MUKIZA VALLEY RESPONDENTS

(Application arising from the ruling and orders of the High Court of

25 Uganda at Kampala (Natuzze Aisha Batala, J.) delivered on 5th May 20241

## CORAM: MOSES KAZIBWE KAWUMI, JA. SINGLE JUSTICE

#### RULING

The Application was brought under Section 98 of the Civil Procedure Act, Rules 2 (2'),6 (21 (b), 53 of the Judicature (Court of Appeal Rules) Directions S.t. L3-10 and al! enabling provisions of the law seeking for;-

- a) An order of a temporary injunction to issue restraining the Respondents, or their agents, servants, assignees, successors in title and or persons claiming under them from transferring, dealing with, developing, constructing on, selling or interfering with the land comprised in Busiro FRV 1006 Folio 13 Plot 8-12/ 8a-12A until disposal of the Appeal. - b) Consequential order that the transfer of the land comprised in Busiro FRV 1006 Folio 13 Busiro FRV 1006 Folio 13 Plot 8-12/ 8a-12A to the 5th Respondent through the recalled Court order registered under instrument No. WBU-00389379 on the Certificate of title be cancelled. - c) The costs of this Application be provided for

### **Background**

The 2nd Respondent, Geo Oils (U) LTD mortgaged land comprised Busiro FRV 1006 Folio 13 Plot 8-12/8a-12A (herein after referred to as "the suit land") to the 4th Respondent NCBA Bank Uganda Limited however, the 2nd Respondent defaulted on repayment terms.

The 4th Respondent initiated recovery measures and upon advertising the suit land, the 1st Respondent instituted Civil Suit No.1117 of 2023 claiming equitable interests in the suit land and sought for among others. declaration that the mortgage on the suit land was illegal.

Meanwhile, the 2nd Respondent and the 4th Respondent entered into a consent Judgment where they agreed to sell the suit land by private treaty and the proceeds to be applied to the loan repayment. Aggrieved with the consent Judgment between the 2nd and 4th Respondent, the Applicant applied for review vide Miscellaneous Application No.1143 of 2024.

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The application for review was dismissed with costs on the basis that the applicant had no locus standi and therefore she was not aggrieved party. Dissatisfied with the dismissal, the Applicant filed Civil Appeal No.591 of 2024 also filed this Application for the orders stated above.

#### Grounds of the Application

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

- L. That the Applicant as an administratrix of the estate of the late Sesiriya N. Musubika, filed Civil Suit No.31 of 20L4 against the 2nd Respondent for recovery of the suit land. - 2. That during the pendency of Civil Suit No.31 of 20L4, the L't Respondent and a one Namayanja Mayanja filed Civil Suit No.1LL7 of 2023 claiming equitable interests in the suit land. - 3. That Civil Suit No. LLLT of 2023 was settled by way of consent between the Ltt, 2nd and 3'd Respondents and it resulted in the sale of the suit land to the 5th Respondent. - 4. That the consent judgment was illegal for the following reasons: - a)The Civil Suit No.1LL7 of 2023 offended the lis pendens rule. - b)That there was already a temporary injunction barring the sale of the suit Iand. - c) That the L't Respondent is non-existent and as such she could not conse nt. - d)That the trialjudge did not visit the locus in quo. - e)That the loans claimed to have led to the sale of the suit land are non- existent. 35 - f) That the 5th Respondent was not even a bidder so as to qua,ify as a buyer.

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- g) That the illegal consent order was used to release the mortgage. - h) That the suit land was transferred to the 5th Respondent without paying stamp duty. - 5. That she filed an application for review and setting aside of the consent judgment before the trial judge but it was dismissed. - 6. That she has filed Civil Appeal No.591 of 2024 in this Court, which 10 will be rendered nugatory if this application is not granted. - 7. That she will suffer irreparable damage if this application is not granted and the pending appeal will be rendered nugatory. - 8. That the application was filed without un due delay. - 9. That it is just and equitable that this application is granted. - The application is supported by the affidavit of the Applicant that $20$ expounds on the above grounds.

The Application was opposed by affidavits in reply deposed by Suzan Munabi, the 1st Respondent's lawful attorney, Brenda Kokwijuka, the 4th Respondent's Manager Legal Services and by Mikiza Valley the 5th Respondent.

The $1st$ Respondent's contention is that the application is barred by law and an abuse of the Court process. Shealso denied the contents of the affidavit in support of the application and contended that she is not a fictitious person and that the summons in Civil Suit No. 1117 of 2023 were personally served upon her.

The 1st Respondent claimed to have purchased her equitable interest from Hajji Khalid Masanga and took possession of the suit land without any interference.

$25$

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She further deposed that sometime in the year }OLL, the znd and 3'd Respondents purchased part of the neighbouring land from a one Simbwa tsaac but erroneously included part of the L't Respondents interest while surveying of the acquired portion.

- 5 That the 2nd Respondent obtained a mortgage which affected the affected part, without her consent but later agreed to pay her. That when the mortgagor failed to pay, the property was advertised which prompted the Respondentto institute Civil Suit No. 1LL7 of 2023 in order to protect her interests. - That the temporary injunction issued in respect to the suit land lapsed with the dismissal of Civil Suit No.3L of 2OL4in the year 2018. That the consent was not illegal and as such, this application ought to be dismissed with costs. 10

The 4th Respondent contended that the application is misconceived, barred by law and an abuse of the court process. That the affidavit in support of the Application and the supplementary affidavit are defective and ought to be struck out. That the Application is moot and was overtaken by events. 15

It was also averred for the 4th Respondent that the znd Respondent obtained a loan facility which was secured by the mortgage of the suit land. That the 2nd Respondent defaulted on repayment which prompted the 4th Respondent to initiate recovery measures. 20

That the recovery measures were impended by the filing of Civil Suit No. LLLT of 2023 which was later settled between the parties by consenting to a sale of the suit land by private treaty and the proceeds to be used to repay the loan. That upon sale to the 5th Respondent and completion of the loan repayment, the mortgage was released.

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The 5th Respondent opposed the application on among other grounds, that the Application is incompetent and devoid of any merit as the Applicant did not obtain leave to appeal against the orders before lodging the appeal.

5 It was further averred that the Application is moot since the consent orders in Civi! Suit No.1LL7 of 2023 were already executed and the suit land was already disposed of and sold to third parties who are not parties to this Application nor to the appeal. That the alleged interlocutory orders of a temporary injunction lapsed upon the dismissal of civil suit Itlo. 31 of 20L4. 10

ln rejoinder to the L't Respondent's affidavit in reply, the Applicant averred that the deponent of the affidavit in reply does not have capacity to do so and she was neverserved with Court summons in Civi! Suit No.31 of 20L4. The Applicant contended that the L't Respondent is fictitious

and that there is a valid and subsisting temporary injunction following the reinstating of Civil Suit No. 31 of 20L4 by the Court of Appeal Civil Appeal No.118 of 20L8. 15

ln rejoinder to the 4th Respondent's Affidavit in reply, the Applicant denied the contents of the 4th Respondent's affidavit in repty and contended that the suit was filed by a fictitious person and that as such the mortgage was not legally released. That there is a pending appeal which necessitates an injunction so as not to render it nugatory. 20

The Applicant did not file an affidavit in rejoinderto the 5th Respondent's affidavit in reply. 25

#### Representation

When the Application came up for hearing on September 4, ZO24 Learned Counsel Mukuve Mugaga appeared for the Applicant, Fahad 30 Kya z.ze for the L't Respondent, Kika bi lbrahim for the znd and 3'd

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Respondents, Patricia Akampurira for 4th Respondent and Mwanje Lawrence the 5th Respondent. The parties were absent.

Counsel filed written submissions which were adopted and consider ed by the court to render the ruling.

#### 5 Consideration of Court

lhave considered the application and all affidavits filed by Counsel, the submissions on record and the authorities cited as well as those not cited.

The law governing applications for injunctions in this Court is set out in Rule 6 (2) (b) of the Judicature (Court of Appeal Rules) Directions S.l. L3-10 which provides that:-

> "6 (2) Subject to sub-rule (L) of this rule, the institution of an oppeal shall not operate to suspend ony sentence or stay execution but the Court moy-

a) ..

b) ln ony civil proceedings, where o Notice of Appeol hos been lodged in occordonce with Rule 76 of these Rules, order a stoy of execution, or injunction or stoy proceedings os the Court moy consider just."

Rule 76 has got three sub-rules. The most relevant sub rule here is rule (1) und it provides thaU- 20

> "Any person who desires to oppeolto the Court sholl give notice in writing which shall be lodged in duplicote with the Registrar of the Cottrt of Appeol."

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

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

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

Page 7 of 9

The 5th Respondent objected to the Application on grounds that the Notice of Appeal has neither been served upon his Counsel nor was it personally served upon him. The 5th Respondent further faulted the Applicant for failure to seek

5 leave to Appeal the decision dismissing the application for review and categorized this application as incompetent.

I'his Application arises from an Appeal against a ruling of my learned sister Hon. Lady Justice Aisha Naluze Batala dated 5/0612024. The appeal emanated from a ruling in an application for review filed by Counsel for the Applicant under Sections 98 and 82 of the Civil Procedure Act and Order 46 rule 1 (al,,2,4 and 46 rule 8 of the Civil Procedure Rules.

Under Order 44 rule (lxt) and (21 of the Civil Procedure Rules, Orders made under rule 4 of Order 46 granting an application for review are appealable as of right. Appeals from other rules under Order 46 are not appealable as of right, which implies leave to appeal must first to be sought first from the trial Court then from the appellate Court if such leave is not granted. 15

Counsel for the Applicant concedes that he never sought the necessary leave. The effect of not seeking the necessary leave 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 General Vs. Shah (No. 4) lL971l at page 50 Spry

Ag. P held:- 25

"lt hos long been estoblished ond we think th'ere is omple authority for saying thot oppellate jurisdiction springs only from statute. There is no such thing os inherent oppellate ju risd ictio n ."

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

"The right of appeal is a creature of statute. There is nothing known in law as an inherent right of appeal. The legal foundation for applications for stay of execution pending appeal is the right of appeal to the proper Court and the fact that the Notice of Appeal has been filed in that Court. Where the Notice of Appeal has been filed but the right of appeal does not exist, the Notice of Appeal is incompetent and cannot form the basis for an application for stay of execution pending appeal; as there is no pending appeal."

- It follows that, where a Notice of Appeal has been filed but the right of 15 appeal does not exist, the Notice of Appeal is incompetent and cannot 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 can not $20$ be invoked by the Court in the absence of the right of Appeal. Premised on that alone, I hold that the Application is incompetent and I do not see any reason to delve into the merits of the Application in the absence of a valid Notice of appeal.

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In the result, I uphold the preliminary objections raised by Counsel for the 5th Respondent. This application is dismissed with costs to the Respondents.

Dated and delivered at Kampala this ... I. L. day of ... October ... 2024. 30

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JUSTICE OF APPEAL