Nkengero & Another v Nasuuna & Another (Miscellaneous Application 128 of 2023) [2023] UGHC 319 (14 November 2023)

## THE REPUBLIC OF UGANDA

IN THE HIGHCOURT OF UGANDA AT MUKONO **MISC. APPLICATION NO.128 OF 2023** (ARISING OUT OF CIVIL APPEAL NO.44 OF 2023) (ARISING OUT OF MISC. APPLICATION NO.339 OF 2022) (ARISING OUT OF MISC. APPLICATIO NO.340 OF 2022) (ALL ARISING FROM CIVIL SUIT NO.155 OF 2022) **1. NKENGERO CHRISTOPHER** 2. KAMBUGU RICHARD

(Suing as beneficiaries to the estate of the late sister maliya Ntanya)...................................

**Versus**

## 1. REV. SR. GORETTI NASUUNA

**2. THE COMMISIONER LAND REGISTRATION....... RESPONDENTS**

# BEFORE: HON. JUSTICE JACQUELINE MWONDHA

#### **RULING**

This ruling is brought by way of chamber summons under the provisions of section 98 of the civil procedure act and order 22 rule 23 and rule 89 of the civil procedure rules SI 71 (as amended) seeking orders that;

1. Execution of the orders meaning from Misc. Application No.339 of 2022 be stayed pending hearing and determination of the main suit civil appeal 44 of 2023.

2. Costs of the application be provided for.

Blwadb

### REPRESENTED BY;

1. The applicants were represented by M/S Kabuga and Partners Advocates.

2. The respondents were represented by $M/S$ Balikuddembe and Co. Advocates.

#### **GROUNDS**

The grounds of this application as set out in the application and supporting affidavit briefly are that the applicant had filed an appeal against the orders made in misc. application 339 of 2022. The applicant averred that he would suffer irreparable loss if the order of stay of execution is not granted and the respondent goes ahead and executes the orders.

The applicant in his affidavit contended that the 1<sup>st</sup> respondent is threatening to execute the orders by applying to the registrar of titles in Mukono to have the caveat logged by the applicant to be removed. That the $1^{st}$ respondent has written to the district staff surveyor for permission to survey and open boundaries totally disregarding the appeal lodged.

The applicant also contended in his affidavit in rejoinder the respondent is not in actual possession of the land and has paraded a tractor on the suit land and has cultivated on the land thus changing status quo of the suit land. That the applicant has been grazing on the suit land with his father.

$\overline{2}$

Whyadb

In reply, the respondent in her affidavit of reply stated that the applicants affidavit is full of falsehoods and misrepresentations intended to mislead and waste this honorable courts time. That the respondent is an executrix of the Late Rev. Sr. Dorothy Maliya Mary Ntaanya a different person from Sr. Maliya Ntanya the applicants claim to know as the former owner of the suit land.

That the land was sub- leased for a period of 99 years to the Hon. Buchanan Baron Woolavington from 1924 by the Late Tofilo Baliluno which land was registered under Mailo Certificate No 18764 MRV 279 FOLIO 9. That upon the death of the late Tofilo Baliluno the certificate of title was left in the hands of the Late Rev. Sr. Dorothy Maliya Mary Ntaanya.

She transferred the certificate into her names and registered it on the 19<sup>th</sup> of April 1961 under land comprised in Kyagwe Block 445 plots 4 and 5 land at busanga in mukono district. The late Rev. Sr. Dorothy maliya mary ntaanya had been receiving rent from the occupants of the land for example Uganda tea coroparation and she appointed attorneys such as Hon. Lady Justice Ritah Wolayo, Rev. Sis. Gorreti Nasuna and Paul Senyonga Baliluno until her demise in 2020 leaving behind a will which will the 1<sup>st</sup> respondent used to obtain a grant of probate on the 15<sup>th</sup> April 2021 in Mukono high court.

That since 2020 1<sup>st</sup> respondent has been receiving rent from the tentants on the land until this yaer 2023 when the lease expired and she has gone ahead and planted maize for the benefit of the

Wheads

$\overline{3}$

beneficiaries from the will of the late Rev. Sr. Dorothy maliya mary ntaanya

Counsel emphasized that the application has not shown sufficient cause to be granted an order of stay of execution and the entire application does not satisfy conditions for the grant of an order for stay of execution.

#### **DETERMINATION**

### Stay of execution

Section 33 Judicature Act; 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 malpractises of legal proceedings concerning any of those matters avoided.

O22 rule 23 $CPR(1)$ ; 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

Whoods

made by the court of first instance, or appellate court if execution has been issued by the appellate court or if application for execution has been made to it.

The guiding principles governing the stay of execution are embedded in Order 43 rule 4(3) CPR and in Lawrence musiitwa kyazze vs Eunice Businge, Supreme Court Civil Application No.18 of 1990 and these are;

- 1. Substantial loss may result unless the order of stay is made. - 2. The application has been made without unreasonable delay and: - 3. Security for costs has been given to the applicant.

The rationale for these conditions is to maintain the status quo of the property that is at stake if the stay of execution is not granted.

The applicant's affidavit in support had a major concern on substantial loss that may result unless the order of stay is made. It's on that background that the emphasis of this ruling will be on substational loss.

# **Issue;** Substantial loss may result unless the order of stay is made;

As to whether the applicants shall suffer irreparable damage, the applicant stated under paragraph 8 of his affidavit that he will suffer irreparable damage if the application is not granted.

Counsel in his submission emphasized that allowing the execution of the orders will cause irreparable loss. The applicant in his affidavit

$\mathsf{S}$

in support under paragragh 5 contended that the 1<sup>st</sup> respondent is threating to execute the orders by applying to the registrar of titles in mukono to have the caveat logged by the applicant to be removed.

The applicant contends in his affidavit in support under paragragh 6 that the 1<sup>st</sup> respondent has written to the district staff surveyor for permission to survey and open boundaries totally disregarding the appeal lodged.

That counsel contended in his submissions that the fact that the $1^{st}$ respondent has planted maize on the suit land changes the status quo of the suit land.

The counsel for the respondents submitted that the allegations of irreparable loss are merely speculations and unfounded with no evidence since the orders of the application for temporary injunction didn't stop the respondents from usage of the land. Counsel also emphasized the findings of court were that upon conducting a locus visit, the said suit land was found bushy showing no signs of either cultivation or cattle raring as purported by the applicants under paragraph 7 of the applicant's affidavit in rejoinder.

Counsel in his submissions emphasized the point that the land has not been in use until because it was subleased for 99 years and the lease had just expired hence utilizing the land accordingly.

In Tropical commodities supplies $1$ td and 2 ors v international **credit bank ltd** justice ogoola (as he then was) held that "the phrase substantial loss does not represent any particular amount or size; it

Whoods

cannot be qualified by any particular mathematical formula.it refers to any loss great or small; of real worth or value as distinguished from a loss that is merely nominal".

I therefore find that this condition has not been met especially since No evidence whatsoever has been adduced to prove which kind of irreparable loss the applicants shall suffer that cannot be atoned in monetary terms by way of compensation should they succeed in the civil appeal case. The respondents are in possession of the said suit land and are cultivating maize which does not in any way interfere with the orders given therefore, this condition cannot stand. Accordingly, it's the respondent (the registered proprietor of the suit land) who is more likely to suffer if the application is allowed.

The security of costs in this matter shall be on cause;

#### Orders

This application is found to lack merit and is dismissed accordingly with costs in the cause.

I so order accordingly.

Willonds.

#### Hon. Justice Jacqueline Mwondha

To be delivered on the<br>14th November 2023