Ssempereza v Mukasa and Another (Civil Application 255 of 2024) [2024] UGCA 225 (27 August 2024)

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CIVIL APPLICATION NO. 0.255 OF 20.24

(Aising from Ciuil Application No. 1272 of 2023 and Ciuil Appeal No. 298 of 2o2s)

RAJAB SSEMPEREZA APPLICANT

#### VERSUS

- 1. SHEM MUKASA (Administrator of the estate of the late Christopher Mukasa) - 2. RAPID ADVISORY LTD ::: : : : : : : : : : : : ::: ::: : : : : : : : : : RESPONDENTS

# BEFORE: HON JUSTICE OSCAR KIHII(4, JA

(Sitting as a single Justice)

#### RULING OF COURT

This application was brought under Rule 2(2), 43 and 44 of tl:,e Judicature (Court of Appeal Rules) Directions seeking for orders that;

A Temporary Injunction doth issue restraining the Respondents, their agents, representatives, assignees or nominees from selling, transferring, sub-dividing, developing, constructing, leasing, mortgaging or in any other way, dealing in or interfering with land and property comprised in LRV 2357 FOLIO 15 KYADONDO BLOCK 273 PLOT 2585 AT KAAZI, BUSABALA or any part thereof, until the hearing and final 1

determination of Court of Appeal Civil Application No. 1272 of 2023.

2. Costs of this application be provided.

The grounds upon which this application is premised are set out in the Applicant's Notice of Motion and the a-ffidavit in support of tJle application deponed by RAJAB SSEMPEREZA, sworn on the 16th of April 2024. The grounds are briefly that;

- 1. Court of Appeal Civil Appeal No. 298 of 2023 arose from Civil Suit No. 673 of 2Oi8 Shem Mukasa Vs Rapid Advisory Ltd wherein the subject matter was a dispute over land comprised in LRV 2357 FOLIO 15 KYADONDO BLOCK 273 PLOT 2585 AT KAAZI, BUSABALA measuring approximately 4.053 Hectares. - 2. During the pendency of High Court Civil Suit No. 673 of 2018, the 1"t Respondent and his now deceased brother and co-Administrator, Stone Mukasa, entered a Financing Agreement with the Applicant wherein it was mutually agreed that the Applicant would finance the recovery process of the suit property from the 2"d Respondent. - 3. On 22"a June 2O23,judgment was delivered by the High Court in Civil Suit No. 673 of 2018 in favour of the 1", Respondent. - 4. Upon delivery of the said judgment, the Applicant, as the Donee of Powers of Attorney from the 1"t Respondent and as financer of the 1"t Respondent and was entitled to immediate transfer of four acres of the suit property and the title was placed in the possession of the Applicant.

- 5. The Respondents conjured a mischievous plan to defeat the Applicant's interest and entered a consent agreement dated 7s September 2O23. - 6. In Clauses 5 and 6 of the impugned consent agreement, it was stated that the 2"d Respondent's certificate of title be restored and the l"t Respondent's title, in the possession of the Applicant, be cancelled. - 7. T!l.e impugned consent judgment is the perfect opposite of the learned trial Judge's hndings and was intended to overturn the decision of the High Court in Civil Suit No. 673 of 2023 without hearing Civil Appeal No. 298 of 2023. - 8. The impugned consent agreement was calculated to frustrate the Applicant who is almost frnalizing the sub division of the suit property to recover his four acres as per the Financing Agreement. - 9. Civil Application No. 1272 of 2023 discloses a prima facie case and has a high likelihood of success since consent Judgments whose effect is to overturn the decision of the High Court have been condemned by this court to be illegal and unconstitutiona-l. - 10. The Appticant will suffer irreparable loss if the suit property, which is on the shores of Lake Victoria, is alienated. - <sup>1</sup>1. The balance of convenience favors tJle Applicant who holds tJ.e special certihcate of title, powers of attorney and a frnancing agreement from the 1"t Respondent.

The l"t Respondent did not file an affidavit in reply. The 2"d Respondent filed an affidavit in reply deponed by MUTESASIRA KINTU LEONARD sworn on the 3.d of May 2024 opposing the application on grounds that;

- 1. The financing agreement dated the 30th day of November 2O2l between the l't Respondent and the Applicant and marked as annexure 'B' attached to the Applicant's supporting alfidavit to the application falls within the definition of champerty and maintenance agreements and is unenforceable at law. - 2. That whereas the 2"d Respondent filed CA No 298 of 2023 arising from HCCS No 673 of 2018 in this court, the parties to the appeal with guidance and advice by their respective Lawyers reached a consent agreement / settlement that was reduced into writing, signed by the parties and their respective lawyers and duly endorsed by this Court. - 3. That the interests of the parties in CA No 298 of 2023 arising from HCCS No 673 of 20'18 were amicably resolved by the parties through a consent agreement. - 4. The Applicant is a stranger to CA No 2gg of 2073 arising from HCCS No 673 of 20 18 ald claims to be aggrieved by the consent agreement executed by the parties, the Applicant has to demonstrate his legal grievances.

## Representation

At the hearing of this application, Mr. MacDusman Kabega appeared for the Applicant, Ms. Regina Trouner appeared for the 1"t Respondent while Mr. Kavuma Kabenge appeared for the 2"d Respondent. The Applicant and the 2nd Respondent filed written submissions which were adopted as their respective legal arguments.

# Consideration of the application

I have carefully considered the affidavits and the submissions of both parties. I have also perused the authorities provided by counsel for which I am grateful.

The jurisdiction of this court to grant a temporar5r injunction stems from Rule 6 (2) (b) of the Rules of this Court which provides as follows;

6. Suspension of sentence and stag of exeantion.

(2) Subjed to subntle (1) of this nie, the instttution of an appeal shall not operate to suspend ang sentence or to stag exeantion, but the court maa-

(a) ...

(b) in ang ciuil proceedings, where a notice of appeal has been lodged in accordance with rule 76 of these Rules, order a stag of exeantion, aninjunction, or a stag of proceedings on suchterms as the court mag think just.

The conditions precedent for the grant of an order of a temporar5r injunction were discussed in Robert Kotruma Vs Hotel Intetnatlonal Supremc Coutt Chil Appeal r\Io.8 of 7990, wherein Wambuzi CJ, as he then was, stated as follows: -

". It is generallg accepted that for a temporary injunction lo issug the court must be satisfied:

i. That the Applicant has a prima facie case with a probability olfsuccess.

ii. That the Applimnt might otherwise suffer ineparable damage uthich utould not be adequatelg compensated for in damages.

iii. If the court is in doubt, on the aboue two points, then the aurt uill decide the application on a balance of conuenience. In other words, whether the inconueniences which are likelg to issue from withholding the injunction would be greater than those which are likelg to aise from granting it".

The task before me is to determine whether or not the Applicant has met these conditions.

# l. Prlma facie case wtth likelthood of auccess

The Supreme Court in the case of Gashumba Maniraguha vs Sam Nkudiye Civil Application No. 24 of 2015, in effect held that the likelihood of success, is the most important consideration in an application for a temporary injunction. Therefore, it is incumbent upon the Applicant, to avail material to the court which would enable it to establish whether or not the Applicant has a prima facie case on appeal.

In this regard, the Respondents raised a preliminary objection stating there is no prima facie case to form a basis for grant of a temporaqr injunction on grounds that the hnancing agreement that the Applicant seeks to rely on falls within the dehnition of champerty and maintenance agreements which are contrar;r to public policy and illegal. In addition, that Civil Appeal No. 298 of 2023 was determined by consent of both parties to the suit.

On the other hand, counsel for the Applicant submitted that for a contract to be invalidated on grounds of champerty or maintenance, it must be shown that the Applicant is a person with neither an interest in litigation nor any other motive recognized by the law as justifying his interference. Counsel further argued that the Applicant is a holder of powers of Attorney from the l"t Respondent, which the l"t Respondent has neither denied nor revoked. Counsel submitted that the Applicant is duly recognised in law, as an agent of the 1"t Respondent whose acts are legally binding and construed as those of the principal.

Having perused the affidavits in support of and in opposition to this application, I note that the Applicant and the 1"t Respondent entered into a Financing Agreement attached to the affidavit in support of the Notice of Motion marked annexure B'. the l"t Respondent also donated powers of attorney to the Applicant and a Power of Attorney was made and is marked annexure A'. It is on the basis of these two documents that the Applicant seeks to enforce his 'rights'in Civil Application No. 1272 of 2023.

It is my considered view that there are arguable points of law and fact that have been raised by the Applicant.

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In the persuasive decision of the Court of Appeal of Kenya, in Stanley I(ang'ethe KinyanJui v Tony Ketter & 5 Others [2Of3] e KLR, an arguable appeal was described in the following terms:

"uii). An arguable appeal is not one which must necessailg succeed, but one which ought to be argued fullg before the court; one which is not friuolous. uiii). In consideing an application brought under Rule 5 (2) (b) the court must not make definitiue or final findings of either fact or law at that stage as doing so mag embarrass the ultimate heaing of the main appeal."

Thus, it is not the duty of this court to pre-empt considerations of matters for the full bench in determining the appeal or application in the instant case, but to determine whether there exists a prima facie case. In the instant application, I am satisfied that the Applicant has established a prima facie case on appeal.

# 2. Ireparable damage

The second consideration is whether the applicant will suffer ln'epardble damage or that the appeal ulll be rend.ered nugatory tJ o stag is not gronted.

In this regard, the Applicant's counsel relied on paragraph 23 of the Applicant's aIlidavit in support of the application and submitted that the property subject of this application is situated in Busabala along the shores of Lake Victoria and cannot be adequately replaced in the event that the Respondents alienate it. The Respondents did not address this element.

The Applicant relied on the persuasive decision in Emorani Yusuf vs Nakendo Hajirah HCMA No. 478 of 2Ol4 in which the element of irreparable damage was found to have been proved over land situate in Mukono, which was considered prime and valuable, and the trial Judge fund that a fair replacement might not be easy to come by.

In my understanding, the Applicant has to show that the damage bound to be suffered is such that it cannot be undone or compensated for in damages. In Giella v. Cassman Brown & Co. [1973] E. A 358, it was held that by irreparable injury, it 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 a material one, that is; one that cannot be adequately atoned for in damages.

In the instant case, the Applicant is in possession of the certificate of title to the suit property and had embarked on the process of subdivision of the land. The nature of his interest is one particularly on the 4 acres of the land comprised in LRV 2357 FOLIO <sup>15</sup> KYADONDO BLOCK 273 PLOT 2585 AT KAAZI, BUSABALA for which he was given a Power of Attorney. It is my considered view that it is in the interest of justice for the status quo to be maintained pending the determination of the Applicant's claim in enforcement of the Power of Attorney given to him.

Having found as I have above, I find no reason to consider the issue of balance of convenience for reasons that court should only consider the balance of convenience where it is in doubt.

In the result, this application was granted with the following orders;

- 1. A Temporary Injunction is hereby issued restraining the Respondents, their agents, representatives, assignees or nominees from selling, transferring, sub-dividing, developing, constructing, leasing, mortgaging or in any other way, dealing in or interfering with land and property comprised in LRV 2357 FOLIO 15 KYADONDO BLOCK 273 PLOT 2585 AT KAAZI, BUSABALA or any part thereof, until the hearing and final determination of Court of Appeal Civil Application No. 1272 of 2023. - 2. Costs shall abide the outcome of Civil Application No. 1272 of 2023.

I so order.

Dated this h/- >i day of .... <sup>2024</sup>

t/ OSCAR JOH IKA JUSTICE OF

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