Onwuvuche and Another v Nankoomi and 3 Others (Civil Appeal 277 of 2023) [2023] UGCA 196 (1 August 2023)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CIVIL APPLICATION NO.277 OF 2023

(*Arising from Civil Appeal No.278 of 2023*)

*(All Arising from High Court Consolidated Civil Suits No. 163 & 311 of 2019)* 10

## 1. ONWUVUCHE AUSTIN NNAMDI

2. ONWUVUCHE NAKIBUUKA SARAH:::::::::::::::::::::::::::::::::::

## **VERSUS**

## 1. NANKOOMI PROSSY

- 2. KASOZI JOHN BAPTIST - 3. ALICE MAKANGA (As Administrator of the Estate

Of the late MBABALI JOHN MAKANGA)

4. COMMISSIONER LAND REGISTRATION::::::::::::::::::::::::::::::::::::

CORAM: HON. MR. JUSTICE CHEBORION BARISHAKI, JA

### (SINGLE JUSTICE)

### **RULING**

The applicants brought this application by Notice of Motion under the provisions of Rules $2(2)$ , $6(2)$ (b), $43(1)$ and (2) of the Judicature (Court of Appeal Rules) Direction S. I 13-10 seeking for orders that; a temporary injunction issues restraining the respondents jointly and or severally, their agents, servants and $1$ | Page

$\mathsf{S}$

$20$

- 5 all persons/entities/agencies claiming under them from any further encroachment, selling, developing/constructing, Mortgaging the suit land or transferring the suit land comprised in Kibuga Block 12 Plot 789 & 791 land at Mengo Kisenyi, Kampala until the disposal or determination of the Appeal pending before this Court and that costs of the application be provided for. - 10 The application is supported by an affidavit sworn by Onwuvuche Austin Nnamdi, the 1st applicant and Onwuvuche Nakibuuka Sarah, the 2"d applicant opposed through an affidavit in reply sworn by Kasozi John Baptist, the 2"d applicant and Alice Makanga, the 3ra applicant.

# Background

15 20 The applicants were defendants in consolidated Civil Suits Nos. 163 & 311of 2Ol9 in which judgement was given against them in respect of ownership of leasehold interest on the land comprised in Kibuga Block 12 Plots 789 &,79I land at Mengo- Kisenyi. The applicants being aggrieved with the judgment of the learned trial Judge appealed to this Court. The 1"t and 2.d respondents ensued the execution process of the orders/ decree through extraction of a decree and a letter addressed to the 4u, Respondent to effect changes on the Register as decreed. The applicants filed Miscellaneous Application No.966 of 2023 in the High Court, Land Division for stay of execution and the learned trial Judge declined to grant the same. The applicants have now filed the instant application.

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# 5 Grounds of the application

The grounds in support of the application are contained in the Notice of Motion and expounded in the affidavits in support of the l"t and 2"d applicants. The gist of the grounds is that the applicants were dissatisfied with the judgment and decree of the High Court in Consolidated Civil Suits Nos. 163 & 311 of 2019 hence filing an appeal which is pending hearing and determination by this Honorable Court. That the l"t and 2.d respondents through their lawyers ensued the execution process of the orders/decree through extraction of the decree and a letter addressed to the 4th respondent to effect changes on the register as decreed. Further that there is a serious threat of execution before hearing and determination of the Appeal as the 4th respondent has directed the applicants to produce the duplicate certificate of title for the suit land so as to effect the Court decree in Consolidated Civil Suits No.163 & 311 of 2019.

The applicants contend that the 1"t and 2,d respondent through their lawyers further ensued execution process through clearance of the Court decree at Police dated 25th May, 2023 in order to use the same to evict the applicants from the suit land. That true to the fears alluded to in the application before the trial Judge in Miscellaneous Application No.0966 of 2023, the lst and 2nd Respondents in the early morning hours of the 11ft July, 2023, with thugs and a platoon of policemen forcefully entered the suit land on Block 12 Plot789, Mengo- Kisenyi, destroyed the applicants'structures and evicted there business without an accompanying warrant and hoarded off part of the suit land with iron

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5 sheets with the sole intention to commence construction thereon as they have started ferrying materials.

The applicants further contend that they filed an application vide Miscellaneous Application No.0966 of 2023 in the High Court, Land Division for stay of execution and the learned trial Judge declined to grant the same on the 29tt day of June, 2023 on erroneous ground that the applicants would not suffer substantial loss since they were using the suit land for grazing cows whereas not and that there was no eminent threat of execution. They added that if the wanton, high handed actions of the l"t and 2"d respondents are not curtailed, they are likely to mortgage or transfer ownership and or create third party interest before the final determination of the appeal which will render the entire appeal nugatory andlor moot.

That the applicants appeal has higher chances of success as the trial Judge deliberately ignored credible evidence that proved that the applicants were the rightful proprietors of the suit land and as such the status quo should be maintained lest the appeal shall be rendered nugatory. Further that the applicants purchased a leasehold interest in Kibuga Block 12 Plots 789 and79l, land at Mengo-Kisenyi and they are in possession of the leasehold certificates of title which evidence was not considered by the learned trial Judge. The applicants have been in actual possession and use of the suit land together with their children operating a car park business which position was confirmed by Court in a consent Temporary Injunction vide Miscellaneous Application No.776 20 25

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5 of 2Ol7 and deriving rent used in the family's sustenance therefrom by the time they were evicted from Block 12 Plot 789 Mengo- Kisenyi on the 1lt'r day of July, 2023. Further that the appeal pending before this Court will be rendered nugatory if the application is not granted and the balance of convenience is in the applicants'favor.

#### Grounds in opposition. 10

The 2"d respondent filed an affidavit in reply deposed by Kasozi John Baptist. The grounds for opposition as set out in the affidavit in reply can be summarized as follows; that the applicants were sued by the respondents pertaining to land comprised in Kibuga Block 12 Plot 789 upon the applicants moving the 4ft respondent, Commissioner Land Registration to cause cancellation of title to Plot 789 registered in the lst and 2rd respondents' names and for which the 4ft respondent was only stopped by order of Court upon filing of HCCS No.163 of 2019. Further that the land comprised in Kibuga Block 12 Plot 789 was registered in the names of the 1"t and 2"d respondents and the 2,d respondent is in actual possession of the land comprised in Kibuga Block L2 plot 789.

He added that upon delivery of judgment on 17tt May, 2023, the same was in favor of the 1",, 2nd and 3.d respondents and throughout the trial of the consolidated suits, the certificate of title for Block 12 Plot 789 was in and the same is still in the possession of the 2rd respondent. That the 2"d respondent's lawyers have to date not filed any application for execution of the decree and there is neither any notice to show cause why execution should not issue nor

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5 has any been issued by this Court. Further that the application is premature in absence of a formal application of execution filed in this Court making the Court with no mandate to irregularly entertain and grant the same.

The 2"d applicant contended that he carried out searches in the land office for the land comprised in Kibuga Block 12 plot 791 and established that the registered owner was John Mbabali Makanga. That the applicants in an attempt to trespass on plot 789, they tried to erect structures which were removed by process of Court. He further contended that this application has no likelihood of success in so far as no deposit of security for performance of decree had been procedurally paid into Court upon filing of the applications which is a prerequisite upon filing of the application and that the intended appeal has no likelihood of success and shall not be prejudiced by denial of this application. 10 L5

He further contended that the applicants have no legal interest in the land comprised in Kibuga Block 12 Plot 789 and have never owned it. That the status of plot 791 has since changed and been restored to its former owner and the amendment to that effect was done on 14m July,2023 vide instrument No. KCCA- 00107352. The 1"t and 2.d respondents are in actual occupation of plot 789 and plot 791 having been restored to the estate of the late John Mbabali Makanga whose estate has no appointed legal representative, the same cannot be sold, transferred, mortgaged or dealt with.

The 3.d applicant filed an affidavit in reply deposed by Alice Makanga, the Administratrix of the Estate of the late Mbabali John Makanga briefly stating 25

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- 5 that the applicants and their children were sued by her late husband, Mbabali John Makanga pertaining to land comprised in Kibuga Block 12 Plot 791 upon the applicants moving the 4tt respondent, Commissioner Land Registration to cause the cancellation of her husband's proprietorship on plot 791 and unfortunately during the course of the trial, her husband died and she was appointed administrator limited to the suit. That judgment was given in favor of the 1"t, 2"d and 3.d respondents and in compliance with the orders of Court, they wrote to the 4ft respondent to rectify the register and reinstate the 3'd applicant's husband as the registered proprietor. 10 - Further that the 4th respondent has since reinstated her husband as the registered proprietor of Kibuga Block 12 Plot 791 and as such there is nothing to injunct as the registration and/ or proprietorship of the land comprised in Kibuga Block 12 Plot 791 has since reverted to her husband's name as per the orders of Court. That the applicants are not and have never been registered proprietors of the leasehold interest on Kibuga Block 12 plot 791 and they stand to suffer no loss in this regard. She added that the applicants have not showed how the transfer of the property of Plot 791 to its original status will affect their appeal and that the balance of convenience is in favor of the 3.d respondent since the proprietorship of the land comprised in Kibuga Block 12 Plot 791 has since been reverted to her late husband's name as decreed by Court. 15 20

# 5 Representation

At the hearing of the application, the l"t applicant was represented by Mr. Soita Jessey, the 2"d applicant was respresented by Mr. Allan Kyakuwa, Mr. Anguria Joseph, Mr. T\rsiime Isaac & Mr. Isabirye Derrick while Mr. Moses Kabega. Mr. Abbas Bukenya & Mr. Muganwa Charles Semakula appeared for lst & 2nd Respondents, Counsel for the 3rd Respondent was absent while Mr. Hakim Babu

appeared for the 4tt Respondent.

When this application came up for hearing, Court directed that the respondent Iiles its affidavit in response together with their submissions in reply and serve the applicants and the third respondent by the 24n of July, 2023. The applicants

were to file their rejoinder and to the submissions in reply by the 26n of July 2023. AII filings were to be served on all the parties including the third respondent and court would render its ruling on notice. The Registrar of this court was directed to serve the order on counsel for the third respondent. 15

I note that the 4th respondent has not complied with the said directives to date.

#### Applicants' submissions 20

Counsel for the applicants submitted that section 38 of the Judicature Act, CAP 13 empowers Court to grant an injunction to refrain a person from doing an act and the rationale for grant of a temporary injunction is to preserve the status quo of the suit property until the parties' rights in the subject matter are determined in the main appeal. He further submitted that the conditions to be satisfied by a party seeking a temporary injunctive order were discussed by the 8lPage

5 Supreme Court in the case of Robert Kanruma V Hotel International, SCCA . I\Io.8 of 1990 cited with approval by the Constitutional Court in Sutaiman Muutonge Lubega V Attorneg Gclneral, Constlttttional Application No. O7 of 2072 to include; the applicant must show a prima facie case with a probability of success, the applicant is likely to suffer irreparable injury and when the Court is in doubt, it will decide the application based on the balance of convenience. 10

Counsel contended that paragraphs 3 and 4 of the 1"t applicant's affidavit in support of the application and annextures \*B" and "C "thereto and paragraphs 3 and 4 of the 2nd applicant's affidavit in support of the application, the applicants deposed that they had both filed Notices of Appeal which had been transmitted to this Court as well as an appeal seeking to set aside the judgment of the learned trial Judge. He added that the Memorandum of Appeal contained 21 plausible grounds of appeal that had merit and required adjudication by this Court. That the applicants had filed applications for stay of execution vide Miscellaneous Application No.0966 of 2023 and Miscellaneous Application No.0968 of 2023 respectively but the same were dismissed by the lower Court. Counsel relied on Kigtmba Kagguta V Hafii Abdul.l\Icrsser Katende, Cidl Suit No.27O9 of 7984 for the definition of a prima facie case to mean evidence placed before the Court, by way of affidavit or otherwise. 15 20

Regarding the condition of irreparable loss, counsel submitted that paragraph 13 and annextures 'J", "K" and "L" of the 1"t applicant's affidavit in support of the application indicated that the 1"t applicant purchased leasehold interest in 25

9!Page 5 the suit land and was in possession of the original duplicate certificates of title which evidence was not taken into consideration by the learned trial Judge in determining the application for stay of execution. That the applicants have been in actual physical possession of the suit land by virtue of a Court order and that from the business operated on the suit land, the lst applicant collects rent which he uses to look after his entire family. He added that the suffering of his family including school going children which shall be caused by altering the status quo and stopping the 1"t applicant from collecting rent from the suit land cannot be atoned by an award of financial damages since the l"t and 2"d respondents have already started execution by fencing off premises and attempting to start construction of totally different structures and such would cause irreparable injury unless the status quo is maintained by this Court. He relied on Ktgitnba Kagguta V HaJJt Abdul.l\ftzsser Katende, Ctull Suit No.27O9 of 1984 for the proposition that irreparable injury does not mean that there must not be physical possibility of repairing injury but means that the injury must be a substantial or material one. 10 15 20

On where the balance of convenience lies, counsel for the applicants submitted that the applicants had deposed in their respective affidavits that they had been in actual physical possession of the suit land by virtue of a Court order where they jointly together with their children operate a car park business. That the applicants being in possession, operating business and having structures on the suit land are likely to suffer more harm compared to the 1.t and 2.d respondents who neither have possession or structures on the land. He added that the 10 lPage

5 balance of convenience lies with the applicants since they are most likely to suffer more harm if the order of temporary injunction is not granted. He relied on Robert Kanruma V Hotel Internatlonal SCCII .l\Io.8 of 7990 where the Supreme Court observed that if the applicant fails to establish a prima facie case with likelihood of success, irreparable injury and need to preserve the statusquo, then he or she must show that the balance of convenience was in his favor. Counsel prayed that the application be allowed and costs of the application be awarded to the applicants. 10

# l"t and 2od respondent's submissions

Counsel for the l"t and 2.d respondent opposed the application and submitted that the application was devoid of merit. Counsel stated that in granting an application for temporary injunction, the applicant must prove that the appeal has a likelihood of success or a prima facie case of his right of appeal, that the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted, that if 1 and 2 above have not been established, Court must consider where the balance of convenience lies and lastly that the 15 20

application must have been instituted without unreasonable delay. He relied on Hon. Theodore Sselcilcuubo & 4 Ors V Attorneg General & 4 Ors,

## Constittttlonal Appltcatlon No. O4 of 2O14.

Counsel contended that in proving whether an applicant's appeal has a likelihood of success or a prima facie case, this Court must be satisfied that the claim is not frivolous or vexatious and that there is a serious question to be tried, 25

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5 secondly, the Court must also establish that there is a triable issue which raises a prima facie case for adjudication and lastly that the Court must also establish that the applicant has serious issues to be tried. He further contended that the applicants in their submissions make no mention on whether their appeal has a likelihood of success or a prima facie case of his right of appeal and that there was overwhelming evidence that the 1st and 2rd respondents are the bona fide owners of the suit land. He added that under paragraph 31 of the 2nd respondent's affidavit in reply, he refers to a letter authored by the 3'd respondent marked as M8 in which she stated that her transactions with the applicants were erroneous and since the applicants purported claim on plot 789 stems from their transactions with the 3'd respondent, her evidence regarding the authenticity of the transaction discredits the applicant's success of the appeal. Counsel stated that the overwhelming pieces of evidence on record prove that the respondents are the rightful bona fide owners of Plot 789 and are in possession of the same and that Plot 791 has been restored to the estate of the late John Mbabali Makanga. 10 15 20

Counsel submitted that irreparable damage means the injury or damage must be substantial or material; one that cannot be adequately atoned for in damages. He added that the applicants had failed to prove that they would suffer irreparable damage that cannot be adequately atoned for in damages. That the applicants stated that they were in actual possession of the suit land whereas not and the Court order they rely on had been overtaken by events because it

5 was issued way back before the High Court Civil Suits Nos. 163 and 311 of 2Ol9 were consolidated and determined in the respondent's favor.

Counsel argued that the applicants continued to bolster their claim by stating that there was a serious threat of execution but in counsel's view, this was uncalled for since the applicants' application for stay of execution was already determined by the High Court and found to be in favor of the respondent. Further that the applicants'application is frivolous, speculative, brought in bad faith, premature and moot as the respondents' have not filed an application for execution and issuance of a warrant before this Court or the High Court. That the respondents have not also called upon the applicants to show cause why execution should not issue.

Counsel further argued that in light of the fact that Plot 791 has been restored to the estate of the late John Mbabali Makanga whose estate has no appointed legal representative, the same land cannot be sold, transferred, mortgaged and or dealt as the applicants would want this Court to believe. He added that the fact that the respondents are the rightful bonafide owners of the suit land, are in possession of the suit land, the applicants will not suffer any irreparable damages and that building on the land does not cause any wastage but rather enhances the value of the land.

On where the balance of convenience lies, counsel submitted that the balance of convenience lies in favor of the respondents and the applicants will not suffer if this application is not granted because they have no legal or equitable interest 25

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5 in plot 789 and the same plot has never been registered in their name and have never been in occupation of the same. Further that plot 791 has already been acted upon by the 4th respondent who has restored it to its former registered owner. He referred Court to annexture M4 attached to the affidavit in reply and since plot 791 is in the names of the late John Mbabali Makanga, the same cannot be sold, transferred, mortgaged and or dealt with without a legal representative. Counsel prayed that the applicants'application is dismissed with costs to the respondents and that the applicants deposit US Dollars 2,O00,O00 as security for due performance of the decree. 10

#### 3"d Respondent's submissions

- Counsel submitted that for a temporary injunction to be granted, Court is guided by some principles as was noted in the case of Shtu Consttttction V End.esha Enterprises Ltd, Supreme Court Chnl Appeal No.34 of 7992 to include a prima facie case with a probability of success, irreparable injury which would not adequately be compensated by an award of damages and lastly if the Court is in doubt, it would decide an application on the balance of convenience. He further submitted that the applicants stood less chances of success on appeal as the judgment of the lower Court decreed that legal title had never passed from the 3.d respondent's late husband to the applicants and that the contract between the 3.d respondent's late husband and the applicants was repudiated. 15 20 - That apart from averring that they had lodged an appeal against the decision of 25

5 the trial Court, the applicants have not in any way proved how their appeal is merited.

On whether the applicants will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted, counsel submitted that the 3'd respondent had in paragraphs 8, 9 & 10 of the affidavit in reply proved that there was nothing to injunct in as far as the 4ft respondent had since reinstated the 3.d respondent's husband as the registered proprietor of Kibuga Block 12 Plot 791 and that the applicants are not and have never been registered proprietors of the leasehold interest on kibuga Block 12 Plot 791. He added that the loss that the applicant is alluding to is farfetched and imaginary without credible evidence that the status quo if changed cannot in any way be quantified in monetary value to be compensated.

Further that the applicants stated that they occupy plots 789 and 791, operating a car park business with Police occupying a small portion of the land and then attached photographs marked as annexture "H' to the affidavit in support of the application that there was attempted illegal eviction by the l"t and 2nd respondents which photographs did not bear any date when the said eviction happened. He added that the fact that the applicants were not registered proprietors of the Mailo and Leasehold interests on the said plots as alleged and Section 54 of the RTA is to the effect that instruments are not effectual until registered on a certificate. That the alleged eminent threat has already been

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5 executed but the same can be compensated in damages in the unlikely event that the applicants succeed on appeal.

Regarding the balance of convenience, counsel submitted that Courts do not issue orders in vain or determine issues that are moot and that issuance of an injunction given the status quo recounted above would be inconsequential. That the balance of convenience is in favor of the 3'd respondent. He added that as was deposed by the 3'd respondent in paragraph 17 of the affidavit in reply, should Court be inclined to grant the application, then the applicant should pay and deposit security for due performance of the decree equivalent to 2,000,000,000/= which is the correct value of the suit land comprised in Kibuga Block 12 Plot 79I. That the applicant has not given security for due performance of the decree or order as may be ultimately binding upon him. He prayed that the application be dismissed with costs to the 3.d respondent.

## Submissions in rejoinder

Counsel for the applicants submitted that the 2"d respondent under paragraphs 15, 16 and 17 of his affidavit in reply deposed that there was no application for execution of the decree or a notice to show cause issued by Court and so the applicants' application was premature but the applicants deny the same and maintain that there had been partial execution of the Court decree as claimed under paragraphs 9, 10 & 11 of the 2"d applicant's affidavit in rejoinder. He added that counsel for the 2nd respondent extracted a decree whose sole intention was to facilitate execution process which the 2nd applicant had 20 25

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- 5 achieved partially. That on 24b M"y, 2023, the 4m respondent wrote to the applicants calling on them to deposit the duplicate certificate of title for the suit land both mailo and leasehold certificates for purposes of effecting changes in the land register and the status of the suit land despite being knowledgeable of the existence of an appeal and being served with the record. He relied on the - case of Harttna Sentongo V I & M Bo;nk M Ltd formerlg Orient Bank (U) LTD, Chnl Appltcatlon No.774 of 2023 for the proposition that it cannot be denied that the extraction of a decree is the first step in the process of execution. 10

Counsel further submitted that the applicants were in possession of the suit land at the time of the pendency of the consolidated civil suits and institution of the appeal but the l"t and 2.d respondents through illegal means have evicted them and causes cancellation of their certificates of title for which they are in possession of the original certificates for land comprised in Kibuga Block 12 Plots 789 &,79 purposely to defeat the appeal and the application arising therefrom. In counsel's view, the injunction is intended to restore the status quo and not to establish a new state of affairs. 15 20

Counsel contended that the trial Court decreed that the 3'd respondent would indemnify the applicants for all the monies spent under the purchase of the suit land but at the same time the trial Court did not quantify the amount of indemnification which in effect renders the impugned decree incomplete. That in considering this, the trial Court took cognizance that the applicants made

valuable consideration far much higher than the lst and 2"d respondents but at

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- 5 the same time wrongly directed that Plot 789 belonged to the lst and 2nd respondents. In counsel's view, the actions of the 1st, 2"d and 3'd respondents evicting the applicants and changing ownership in the registry without addressing the issue of indemnilication amounted to unjust enrichment which this Court should shun upon. - Counsel further contended that the instant application was made without undue delay on the part of the applicants, there is a pending appeal before this Court vide Civil Appeal No.278 of 2023 which merit high chances of success. That there was a likelihood that the l"t and 2"d respondents are likely to develop the suit land to the detriment of the applicants, transfer the suit land to the third parties to completely defeat the applicant's appeal before it is finally determined since there was nothing hindering them. He reiterated his earlier prayers. 10 15

### Court's consideration

The jurisdiction of this Court to grant an injunction is set out in Rule 6(2) (b) and Rule 2(2) of the Judicature (Court of Appeal Rules) Directions S.l 13-10 which mandate the Court to grant stay of execution, an injunction or order a stay of proceedings on such terms as the Court may deem fit.

This is a substantive application where the applicant seeks a temporary injunction restraining the respondents jointly and or severally, their agents, servants and all persons/ entities/ agencies claiming under them from any further encroachment, selling, developing/ constructing, mortgaging the suit

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5 land or transferring the suit land comprised in Kibuga Block 12 Plot 789 &,791 land at Mengo Kisenyi Kampala.

Kihika, JA in Uganda Reaenue Authorttg V Natlonal Soclal Securitg Fund, Ctuil Appltcatlon No.43 of 2023 held that a single Justice of Appeal has jurisdiction to hear and determine a substantive application like the instant one.

10 The principles upon which a temporary injunction can be granted were laid down by the Supreme Court in Shiu Constntctlon V Endesha Enterprises Ltd, Cidl Appeal No.34 of 1992. Court stated that;

"The applicant must shou a pima facie case with a probability of success. An injunction will not normallg be granted unless the applicant might 15 otherwise suffer irreparable injury, uhich could not be compensated in damages. When the Court is in doubt it will decide the application on the balance of conuenience. "

Further in Constltrttlonal Appllcatlon No. O6 of 2073, Hon. Theodore Sselcikubo & 3 Ors V The Attorneu General & 4 Ors, the Supreme Court 20 stated as follows;

> "This Court has in a number of cases laid doun pinciples gouerning the exercise of the discretion conferred bg this ntle. In Akankaasa Damlan V Uganda, Constittttional Application .l\Ios. 7 and 9 of 2O 1 7, for instance, the pinciples were re-stated as follows;

- 5 1. Applicant must establish that his appeal has a likelihood of success,' or a prima facie case of his ight of appeal. - 2. That the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted. - 3. If 1-2 aboue haue not been established, Court must consider uhere the balance of conuenience lies.

We should add that another principle is that the applicant must also establish that the application was instituted without delag."

The first consideration is whether the applicants' appeal has a likelihood of success or a prima facie case of his right of appeal.

- In paragraph 12 of the 1"t applicant's affidavit in support of the application, he deposed that the appeal has higher chances of success as the trial Judge deliberately ignored credible evidence that the he was the rightful proprietor of the suit land as such the status quo should be maintained lest the appeal shall be rendered nugatory. 15 - The applicants submitted that the Memorandum of Appeal filed in this Court contained 2l plausible grounds of appeal that had merit and required adjudication by the Court. 20

They averred in their respective affidavits that they purchased a lease hold interest in Kibuga Block 12 Plots 789 and 79L,land at Mengo-Kisenyi and that they were in possession of the leasehold certificates of title. Further that they had been in actual possession and use of the suit land together with their

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5 children operating with them a car park business and deriving rent used in the family's sustenance therefrom by the time they were evicted from Block 12 Plot 789 Mengo Kisenyi on the 1ln day of July, 2023. They attached annexture "J", a copy of the Leasehold Agreement, Annexture 'K", a copy of Certificate of Title for Plot 789, Block 12, Kibuga land at Mengo, Annexture "Ln, a copy of a Certificate of Title for Plot 791 Block 12 Land at Mengo Kisenyi. 10

The 2"4 respondent, Kasozi John Baptist deposed in paragraph 4 of his affidavit in reply that the land comprised in Kibuga Block 12 Plot 789 was registered in the names of the l"t and 2.d respondents. Further that Plot 789 has no lease interest registered on it and the former lease on it was for Semaili Kabanda which lapsed on 14ft October, 2O2l vide instrument number KCCA-O0O8478.

The Supreme Court in fushumba Manlraguha V Sam Nkudtge, Cirrll Appltcatlon No.24 of 2075, Court held that likelihood of success is the most important consideration in an application for stay of execution. Therefore, it is incumbent upon the applicant to avail evidence, or material to the Court in order for it to establish whether or not the applicant has a prima facie case on appeal.

The facts set out by the applicants demonstrate a prima facie case which merits consideration by this Court.

On whether the applicant will suffer irreparable damage or that the appeal will be rendered nugatory if a stay is not granted, counsel for the applicants submitted that paragraph 13 and annextures "J", uK'and uL" of the l"t applicant's affidavit in support of the application indicate that the 1"t applicant

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- 5 purchased leasehold interest in the suit land and was in possession of the original duplicate certificates of title which evidence was not taken into consideration by the learned trial Judge in determining the application for stay of execution. That the applicants have been in actual physical possession of the suit land by virtue of a Court order and that from the business operated on the suit land, the l"t applicant collects rent which he uses to look after his entire family. He added that the suffering of his family including school going children which shall be caused by altering the status quo and stopping the 1"t applicant from collecting rent from the suit land cannot be atoned by an award of financial damages. 10 - In @lella V Co.ssmo;n Broutn & Co. (1973) E. A 358, it was held that irreparable injury does not mean that there must not be physical possibility of repairing the injury, but it means that the injury or damage must be substantial or material one that is; one that cannot be adequately atoned for in damages. 15

I find that the applicants have demonstrated through affidavit evidence that they will suffer irreparable damage if they are evicted by the respondents because the family derives its livelihood from the suit land. 20

As to whether the appeal will be rendered nugatory if the stay is not granted, the 1"t applicant deposed in paragraphs 5, 6 and 7 of the affidavit in support of the application that the 1"t and 2nd respondents had ensued the execution process of the orders/ decree through extraction of the decree and a letter addressed to

the 4ft respondent to effect changes on the Register as decreed. That there is a

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5 serious threat of execution before hearing and determination of the appeal as the 4ft respondent had directed the l"t applicant to produce the duplicate certificate of title for the suit land so as to effect the Court decree in Consolidated Civil Suits No.163 & 311of 2019. Further that the l"t and 2.d respondents have ensued execution process through clearance of the Court decree at Police dated 25tr, May, 2023 in order to use the same to evict the applicants. 10

The applicants attached a copy of a decree and a letter dated 23'd May, 2023 from the lst and 2"d respondent's counsel addressed to the Commissioner Land Registration, 4ft Applicant marked as annextures "D" and "E". Further, they have also attached a copy of the letter from the 4ft respondent directing them to produce the duplicate certificate of title for the suit land to effect the Court Decree in Consolidated Civil Suits Nos. 163 and 311 of 2019. The said letter is marked annexture'F". The applicants have also attached annexture uG", d police clearance letter of a Decree vide Civil Suit Nos. 163 and 31 1 of 2019.

From the evidence above, I am satisfied that the applicants have shown that the the appeal shall be rendered nugatory. 20

On where the balance of convenience lies, Kihika, JA in Legal Bralns T?ttst (IBT) Ltd V Attorneg General, Ciud'l Appltcatlon No.56 of 2023 stated that the balance of convenience lies more on the one who will suffer more if the Respondent is not restrained in the activities complained of in the appeal.

The applicants averred in their respective affidavits that they purchased a lease hold interest in Kibuga Block 12 Plots 789 and 791, land at Mengo-Kisenyi and 23 lPage 25

5 that they were in possession of the leasehold certificates of title. Further that they had been in actual possession and use of the suit land together with their children operating together with them a car park business and deriving rent used in the family's sustenance therefrom by the time they were evicted from Block 12 Ptot 789 Mengo Kisenyi on the lltt' day of July, 2023. They attached annexture uJ", a copy of the Leasehold Agreement, Annexture "K", a copy of Certificate of Title for Plot 789, Block 12, Kibuga land at Mengo, Annexture "L", a copy of a Certificate of Title for Plot 791 Block 12 Land at Mengo Kisenyi. 10

I find that the balance of convenience lies in favor of the applicants because they are in possession of the suit land from which they derive livelihood.

As to whether the application was instituted without delay, the applicants averred in their respective affidavits that the application had been brought without undue delay. 15

The evidence on record indicates that judgment in High Court Consolidated Civil Suits Nos. 163 & 31L of 2019 was delivered on 17ft M.y, 2023, the applicants

- filed an appeal in the High Court on 18ft M"y, 2023 and in this Court on 23'd M"y, 2023, an application for stay for of execution was filed by the applicants in the High Court and the learned trial Judge declined to grant the same on 29n June, 2023 hence the instant application which was filed in this Court on 14ft July, 2023. 20 - I find that the instant application was instituted without undue delay. 25

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- 5 I therefore, find that the applicants have met the conditions for the grant of a temporary injunction. I allow the application and make the following orders; - 1. An order of temporary injunction is hereby issued restraining the respondents jointly and or severally, their agents, servants and all persons/ entities/ agencies claiming under them from any encroachment, selling, developing/constructing, mortgaging the suit land or transferring the suit land comprised in Kibuga Block 12 Plot 789 & 791 land at Mengo Kisenyi until the disposal of Civil Appeal No.278 of 2023. - 2. The costs of this application shall abide the outcome of the appeal.

I so order

15Dated ta Kampala this .. .day of frsk \M- .2023

l Barishaki

JUSTICE OF APPEAL