Sanyu v Kabyanga and Another (Civil Application 160 of 2024) [2024] UGCA 203 (29 July 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPLICATION NO. 0160 OF 2024 (Arising out of Civil Appeal 144 of 2022) (Arising out of Civil Suit 0304 of 2002)

$\mathsf{S}$

SANYU PATRICK ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

### 1. ERNEST KABYANGA

#### 15 2. COMMISSIONER FOR

LAND REGISTRATION ::::::::::::::::::::::::::::::::::::

## **RULING OF COURT**

This application is brought under Rules $11,43,53(2)(b)$ of the Court of Appeal $20$ Rules and S.98 of the Civil Procedure Act.

It is for the following orders;

- a) The respondents, their agents, workers and employees be restrained from - 25 dealing with the land comprised in Gomba Block 23 Plot 5 at Nbuguyo until Civil Appeal 144 of 2022 and the criminal appeal are determined or further orders issued by the court. - b) Execution proceeding in Civil Suit 0304 of 2022 be stayed until the appeal in this case is disposed of. - c) A temporary injunction be issued restraining the respondents, their agents, 30 workers, employees or any other person denying or claiming title through them from trespassing, alienating or evicting the applicant from the suit land. - d) Costs of this case be provided for.

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5 The applicant was represented by Mr. Yahub Kayonjo while the respondent by Mr. Julius T\.rrinawe.

This application is supported by the aflidavit of the applicant which states its facts and the grounds. The 1"t respondent filed HCCS 3O4 of 2022 against the applicant for recovery of land comprised in Gomba Block 28 Plot 1 and all those plots divided out ofit. The l"t respondent obtained a decree in HCCS 3O4 of 2022 against the applicant giving him powers and right to take over Block 28 Plot 3 of Nabuguyo from the latter. There have been attempts to evict the applicant. He states that he will suffer irreparable damage.

The l"t respondent in his affidavit in reply opposed the application. He argued that the application does not disclose grounds for the grant of the reliefs sought. He was not engaged any persons to evict the applicant. There exists a court order to cancel title to Bock 28 Plot 3. He has a right to recover the land. The applicant lodged a caveat on his Land. The applicant is under no threat of eviction' The applicant has not received any eviction notice' He will not suffer irreparable damages. The applicant has not provided security for costs.

25 The 1"t respondent goes into legal arguments which I will not repeat as an affidavit is not supposed to be argumentative.

The l"t applicant filed an affidavit in rejoinder which also like that of the lst respondent is argumentative. It goes into m.rny unnecessarSr facts and legal arguments, which I will not repeat.

The applicant is his submissions stated that they first filed HCCS 304 2OO2 against him and 4 others for recovery of land. Judgment was entered in favour of the lst respondent. The decree authorised the lst respondent to evict the applicant from Block 28 Plot 3 at Nabuguyo and cancel the title. A permanent injunction was issued against the applicant and his co- defendants' The l"t

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respondent appealed against the decree and the applicant has made a cross appeal.

The applicant submitted that the 1st respondent has not applied for execution of the decree. The l"trespondent has illegally and fraudulently executed the decree 10 on Block 25 Plot 5 Nabuguyo instead of Plot 3. The l"trespondent has managed

through illegality and fraud to register the suit in his names'

The applicant submitted that the court can use its inherent powers under s.98 of the civil Procedure Act and S.33 of the Judicature Act to stop any further illegal execution proceedings which were never sanctioned in the decree. The 1"t respondent can be stopped for obtaining a special title deed.

The applicant submitted that he has suffered hardship. The injury to him and his family is so serious and irreparable that it merits stay of execution without waiting for execution.

The applicant also prayed for a temporary injunction to restrain the respondents their agents, workers, employees from trespassing, alienating or evicting the applicant. He submitted on the principles of granting a temporary injunction' He noted that he had a prima facie case with a probability of success. The applicant is likely to suffer irreparable damage. If the applicants and his family are evicted they will have no land to grow food and rear animals. He cited Francis Kanyanga u Diamond Trust Bank where Justice Lamech Mukasa stated that irreparable injury means injury must be substantial or a material one; that is, one that cannot be adequately compensated for in damages. 25 30

The applicant submitted that if the court is in doubt on this application, it may decide the matter on a balance of convenience. It submitted that the balance of convenience is in its favour. The 1st respondent does not respect court's decision.

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- The applicant further submitted that the court has to preserve the status quo. He cited Godfreg sekitoleko and others u seezi Mutabazi [2001-2005] HCB Vol. 1. p. 30. where it was stated that "The court has a duty to protect the interests of lthe parties pending the disposal of the substantive suit " - In reply, the 1 st respondent submitted that the applicant did not serve him submissions as directed by court. Then court issued orders directing the applicalt to file and serve the respondents the application and submission on 8rh March 2024. He contended that the applicant is in contempt of court orders. He cited Amrit Coyal u Marichad Crotgal and 3 others CACA 109 of 2OO4' 10 - Buganda Medical centre u Ngamutero and others Application 7 of 2o2o, Bio ToslLa Distibutors Ltd u Kenga Breueries Ltd and others Petition 15 of 2O2O2. The lst respondent contended that the submissions of the 1"t appellant be struck out and it is ordered that they failed to prosecute his application. 15 - on the application of stay of execution, the 13t respondent contended that he sued the applicant and 4 others. Two of the defendants are not party to this application yet the reliefs sought are intended to benefit them. There is no evidence that they instructed the applicant to proceed on their beha.lf. The 1st respondent submitted that the court should be slow in granting reliefs to any person not a party to the proceeding before them. 20 25

The 1st respondent submitted that the applicant has not produced evidence of execution proceedings in civil suit 0304 of 2oo2. In his a-ffidavit, instead the applicant indicated that the 1"t respondent is in likely to take out execution

proceedings. 30

> Without prejudice, the lst respondent submitted that stay of execution can only issue in accordance with established principles of law. He cited Hon. Theodore

- 5 ssekikubo and others u Attornea General and others constitutional Application 3 of 2074 which outlined them as; - a) The applicant must show that he lodged a notice of appeal' - b) That substantial loss may result to the applicant unless the stay of execution is granted. - c) That the application has been made without unreasonable delay' - d) That the application has given security for due performance of the decree or order as may ultimately be binding upon him.

The 1sr respondent submitted that the court of Appe d in Kyambogo uniuersitg u Prof. Isaiah Omodo Ndiege CA 371 of 2073 to include;

- a) There is serious or eminent threat of execution of the decree or order and if the application is not granted; the appeal would be rendered nugatory' - b) That the application is not frivolous and has a likelihood of success' - c) That refusal to grant the stay would inflict more hardship than it would' - 20

The 1"t respondent submitted that the applicant has not furnished evidence that he has filed a notice of appeal or cross appeal. There is no memorandum of appeal attached. The 1"t respondent cited Ahmed Muhamed Kisuule u Greenland Bank (in liquidationl SCCA 7 of 201 1 where the court stated that

25 "For al Application in this court for a stay of execution to succeed, the applicant must first show, subject to other facts in a given case, that he/she has lodged a notice of appeal in accordance with rule 72 (Rule 76 for Court of Appeal) of the Rules of this court."

30 The 1"t respondent submitted that the grounds of appeal are not illuminated in any single ground in the notice of motion.

The I "t respondent states that the applicant does not commit himself to the payment of security for the performance of the decree which amount would tota-l to Shs 88,000,000. The l"t respondent a-lso submitted that the applicant does not show that the balance of convenience in his favour. The l"t respondent

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5 submitted that the applicant did not plead any grounds of appeal to assist the court determine whether a prima facie case has been established.

As regards irreparable damage, the applicant has not shown evidence of any imminent threat of eviction. The 1st respondent submitted that even if the applicant was to be evicted, the cost of living away from the suit land can be measured. The lst respondent submitted that the balance of convenience is in his favour.

In rejoinder, the applicant submitted that he applied informally by letter to amend the application to limit it to him. He stated that the application was duly designed to stop dealings in respect of that suit land comprised in Gomba Block 28 Plot 5 which belongs to him. 15

As regards filing submissions late, the applicant submitted that they were informed that it is court officials who effect service, so they left all copies of the submission with court. He denied being in contempt of court. 20

The applicant contended that the execution process has not yet been completed as the l"t respondent has not yet got the title to the suit lalld. The applicant wishes to stay any further execution and or dealing with the suit land.

The applicant submitted that the court does not need to resort to assessing whether he has complied with the principles shown in the cases guiding on the grant of stay of execution where no execution proceedings or warrant has been

issued. 30

The applicant submitted that on perusal of the memorartdum of appeal, the respondent has no singe ground of appeal against him. The applicant has no probable chance of success where as he has a cross appeal.

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- 5 As regards the temporary injunction the applicant submitted that the I"t respondent did not resort to the constitutional (Land) (Practice) Direction 2021. He also stated he l-rled an application for stay which was dismissed by the trial judge because the applicant had not taken out any warrant of execution' He stated that the 1"t respondent executed a non-existent decree without a warrant' - 10

The applicant reiterated that he stands to suffer irreparable damage. He cannot find alternative near River Katonga. He will lose the graveyard of his mother.

Having perused the application and its affidavits and read the submission of the 15 party

The 1s! respondent filed HCCS 3O4 of 2OO2 against the applicant and 4 others from recovery of land. In the High Court, the l"t respondent was successful' Despite being successful he filed an appeal against the high court judgment. The applicant has frled an application for stay of execution.

The grounds for stay of execution are stated in Hon. Theodore Ssekikubo u AttomeA General Constitutional Application 3 of 2074 which include.

- 1) The applicant must first show that he/she has lodged a notice of appeal - in accordance with Rule 72 of tll.e Rules of this court. - 2) The applicant's appea.l has a high likelihood of success. - 3) The applicant will suffer irreparable loss if stay is not granted. - 4) The application has been made without unreasonable delay. - 30 The 1st respondent rightfully noted that the applicant made this application for his own benefit. The other respondents in the appea-l did not instruct the applicant to pursue an application for grant of stay for then. The applicant conceded that this application is for his own benefit.

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5 Therefore, it is important for me to ascertain which orders the applicant is seeking to obtain in stay of execution or a temporary injunction'

The orders of high court which effect the applicant as stated in decree are;

- 1. The plaintiff is an equitable owner of Gomba Block 28 Plot 1, land of Nabuguyo Block 28 Pot 1. - 2. The plaintiff has an equitable interest in respect of Gomba Block 28 Plot 1 at Nabuguyo. - 3. That the lst and 2"d defendants acquired the suit land and were registered on the same through fraud. - 4. The l"t defendant should be evicted from Gomba Block 28, Plot 3 at Nabuguyo. - 5. The 5th defendant is ordered to cancel the 1"t defendant's title in respect of Gomba Block 28 Plot 3 Nabuguyo and register the one in the plaintiff's names

Order 8 and 9 against the plaintiff applicant were in respect of general damages and some profits.

The first prayer for the applicant was in respect of Gomba Block 28 Plot 5 at Nabuguyo which does not seem to be part ofthe subject matter in decree HCCS l44of 2022. The applicant stated thathe subdivided Plot 5 from Plot 1. Itseems a bit ridiculous that the applicant subdivided other plots from Plot I yet he is fully interested in pursuing Plot 5 but not the other subdivided ones. Annex El2 shows that Plot 5 has its own certificate of title. If it was not part of the subject matter of HCCS 304 of 2022,I cartnot include it.

The applicant prayed for stay of execution' At the respondent rightfully noted that the memorandum of appeal by the l"t respond is against the 3'd and 4tt' defendants while the applicant is the l"t defendant' Since the appeal is not against him he stands to lose or gain anl'thing from it. The applicant stated he filed a cross-appeal. The applicant has not attached it to his application' He has also not attached his memorandum of cross-appeal. In the absence of a notice 30 35

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- of cross appeal and taking into consideration that the 1st respondent's $\mathsf{S}$ memorandum does not touch him, the applicant does not show his interest in the appeal. Neither does he show that he has a likelihood of success. The respondent cited *Dr. Ahmed Muhammed Kisule v Greenland Bank* (in liquidation) SCCA 7 of 2011 where it was stated that "for an application in this court for stay of execution to succeed, the applicant must first show, subject to other facts in 10 a given case, that he/she has lodged a notice of appeal..." The applicant has not shown that he has filed a notice of cross appeal nor the likelihood of success of his appeal. - As regards suffering irreparable damage, the applicant was ordered to pay 15 general damages of shs 30,000,000 and some profits of shs 20,000,000. Black's Law Dictionary 9th Edition p.447 defines irreparable injury as "damage that cannot easily be ascertained because there is no fixed pecuniary standard of measurement." The applicant's damages can be ascertained. One will not suffer - irreparable damage. 20

The applicant prayed for a temporary injunction. The applicant has to show that he has a prima facie case with a chance of success. On appeal it is difficult to show that one has a prima facie case with a chance of success when there is a decision of the lower or High court against him.

Taking the above into consideration this application is dismissed with costs.

Dated at this day.... $\frac{29}{1}$ of....................................

Dr. Asa Mugenyi **JUSTICE OF APPEAL**

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