Were & 3 Others v Were (Miscellaneous Application 249 of 2024) [2024] UGCA 147 (13 June 2024)

Full Case Text

THE REPUBTIC OF UGANDA !N THE COURT OF APPEAT OF UGANDA AT KAMPAIA MISCETTANEOUS APPTICATION NO. 249 OF 2024 (ARTSTNG FROM CIVII APPEAT NO. 309 OF 2024l- (ArL AR|SING FROM Clvlt SUlr NO. 006 OF 2022)

1. PATRICIA WERE 2. DOUGTAS WERE 3. MICHEAT WERE 4. MATHEW WERE

APPTICANTS

#### VERSUS

#### WERE IMMACULATE RESPONDENT

(Application arising from the decree of the High Court (Henry lsabirye Kawesa t.) delivered on 72 April2024)

## RUTING OF KAZIBWE MOSES KAWUMIJA. (srNGLE JUSTICE)

This Application was brought under Article 128 of the Constitution of the Republic of Uganda 1995, Rules 2 (2]l, 6 (2) (b), aZ Ql and a3 \$) and (2) of the Judicature Court of Appeal Rules Direction S.l. 13 -10.

The Applicants sought for an order of injunction to be issued to maintain the status quo of the estate of the late Were Patrick and to restrain the Respondent or her servants/agents from trespassing or transacting in the estate until the disposal of Civil Appeal No. 0309 of 2024 and for costs to be provided for.

Page 1 of 10

The grounds of the Application as set out in the Notice of Motion and substantially repeated in the Affidavit of the 1st Applicant in support of the Application are that the Applicants were unsuccessful parties in High Court Civil Suit No. 006 of 2022 and were dissatisfied with the Judgment and decree of the High Court hence, Civil Appeal No. 0309 of 2024. That they filed a Notice of Appeal, wrote a letter requesting for a record of proceedings and later filed a memorandum of Appeal.

The $1^{st}$ Applicant further averred that there is a serious threat of execution of the decree of the High Court yet the Appeal has high chances of success. That the Applicants will suffer irreparable damage if this Application is not granted to maintain the status quo of the estate as at the time of death of the late Were Wedakule. That the balance of convenience tilts in favour of the Applicants and that Application has been made without delay.

The Respondent filed an affidavit in reply whose main thrust is that the Application is incompetent, an abuse of Court process and that the Applicants have never filed a Memorandum of Appeal.

She further averred that this Application does not fulfil the conditions for stay of execution of the Judgment and Decree in Civil Suit No. 006 of 2022 while the balance of convenience tilts in her favour as this Application and the Appeal were filed malafide with the ill intention of delaying the distribution of the estate. She prayed for dismissal of the Application with costs.

In rejoinder, the 1st Applicant averred that this Application is competent since there is a Memorandum of Appeal filed in this Court. That after the judgment, the Respondent commenced acting as an administrator.

Page 2 of 10

That the respondent wrote a letter requesting for all certificates of title from the former manager of the late Were Patrick Wedakule and threatened the Applicant's mother with eviction. She further averred that this Application meets the requirements of the orders sought.

Further still, the Applicants filed a suppletnentary affidavit in rejoinder, where they averred that the marriage certificate that was the basis of the grant of the Letters od Administration to the Respondent as a surviving spouse is a forged which is a serious and major issue to be tried and as such, the Appeal has higher chances of success.

## Back ground

As gathered from the record, upon the demise of the late Were Patrick Wedakule, the Respondent applied for and was granted Letters of administration as a surviving spouse which marital status is disputed by the Applicants coupled with the fact that other beneficiaries were not mentioned in the Petition for the grant.

On that premise, the Applicants instituted Civil Suit No. 006 of 2022 as beneficiaries of the estate of the late Were Patrick Wedakule and sought for a declaration that the Respondent was not married to the late Were Patrick Wedakule, an order for revocation of the grant on account of fraud, general damages, interest and costs of the suit.

During the hearing of the suit in the High Court, the Applicants adduced evidence of a letter from the Uganda Registration Services Bureau which was to the effect that the Certificate of Marriage attached to the Petition for letters of administration was a forgery and the marriage was non-existent.

Page 3 of 10

The said letter was admitted as an exhibit however, upon evaluation of the evidence, the learned trial Judge found that it was more probable than not that the Respondent was married to the late Were Patrick Wedakule and therefore she legally obtained the grant and the suit was accordingly dismissed with costs.

Being dissatisfied with the Judgment, the Applicants appealed to this Court and also filed this Application for an injunction to maintain the status quo of the estate until determination of the Appeal.

#### Representation

ASB Advocates represented the Applicants while the Respondent was represented by MBS Advocates. Both Counsel filed written submission which they adopted at the time of hearing.

#### Submissions

Counsel for the Applicant cited Shiv Construction V. Endesha Enterprises ttd. SCCA NO. 34 of L992 and submitted that the requisite principles for the grant of this Application are that; -

- 1. A prima facie case with probability of success - 2. The Applicant will suffer irreparable damage which would not be adequately compensated by way of damages, and - 3. lf Court is in doubt, it will decide the case on a balance of conven ience.

He submitted that the Applicants meet all the conditions as they have shown that the Appeal has higher chances of success. He also submitted that the Respondent already tried to evict the Applicants which amounts to a serious threat of execution. That the Applicants willsuffer irreparable damage if a temporary injunction is not granted, as the Appeal will be rendered nugatory.

Page 4 of 10

Concerning the balance of convenience, Counsel submitted that it was in favour of the Applicants who would be inconvenienced by the actions of the Respondent yet the Appeal has high likelihood of success. Counsel invited Court to find that the conditions for the grant of a temporary injunction have been fulfilled.

On the other hand, Counsel for the Respondent raised a preliminary objection that this Application is a disguised Application for stay of execution thus a nullity, totally wrong, irregular, untenable in law and fact and an abuse of due process of Court. They prayed that it is struck out with costs.

While citing rule 42 of the Rules of this Court, they submitted that the Applicants ought to have filed this kind of Application in the High Court and resort to this Court upon the dismissal of the prior Application by the High Court. They relied on the case of Lawrence Musitwa V. Eunice Busingye SCCA No. 18 of 1990 to buttress their argument. Counsel prayed for the dismissal of the Application with costs.

It was submitted for the Respondents that the status quo being sought is not clearly and substantially described in the Application to enable Court ascertain the status quo to be maintained, that the status quo being sought is impracticable, ambiguous and only intended to prematurely reverse the decision of the trial Judge and will render the pending Appeal nugatory.

They submitted that ordering the state of affairs as it was at the time of death of the late Were Patrick Wedakule would amount to a reversal of all that has already taken place and it would be an order in vain. Counsel cited the Kenyan case of Gusii Mwalimu lnvestment Co. LTD &Ano. V. Mwalimu Hotel Kisii tTD (1995-1998) 2 EA 100'

Counsel argued that no cogent evidence was led to show that there is a bonafide dispute. That the suit was heard and determined on merit, as such, there is no prima facie case established by the 1't Applicant's affidavit in support of the Application.

As regards irreparable loss, Counsel submitted that the Applicant will not suffer irreparable loss. He submitted that right from the lower Court, the Applicants sought general damages and interest which are ascertainable by Court. They invited Court to find that any loss will be adequately compensated thus no irreparable loss is established.

On balance of convenience, Counsel submitted that is the Respondent to suffer great inconvenience as the grant mandates her to manage, distribute the estate to various beneficiaries however the sought would prevent her from carrying out her duties administrator and render the estate prone to waste. Counsel Court to dismiss the Application with costs. orders a5 an invited

## Consideration by Court

I have carefully considered the Application, the affidavits in support, and in re-joinder. I have also considered the written submissions which all counsel adopted as well as the cited case law.

The jurisdiction of this Court to grant an injunction is stipulated under Rule 6 (2) (b) and Rule 2 (2) of the Rules of this Court.

Rule 6 (2) (b) provides that subject to sub rule (1) of this rule, the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the court may in any criminal proceedings, where and in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 75 of these Rules, order a stay of execution, an injunction, or a stay of proceedings on such terms as the court may think just.

Page 6 of 10

Rule 2 (2) provides that nothing in these Rules shall be taken to limit or otherwise affect the inherent power of the court, or the High Court, to make such orders as may be necessary for attaining the ends of justice or to prevent abuse of the process.

The Respondent raised an objection to the effect that the Application is incompetent for being improperly before this Court because it ought to have been made in the High Court as required by Rule 41 (2). On the other hand the Applicant submitted that Rule 41 (2) did not require the application to first be made to the High Court first and that this Court has wide powers to hear the Application.

It is trite that this Court has concurrent jurisdiction with the High Court in Applications of this nature.

Rule 42 (2) of the rules of this Court provide that:-

"Notwithstanding sub rule (1) of this rule, in any civil or criminal matter, the court may, on application or of its own motion, give leave to appeal and grant a consequential extension of time for doing any act as the justice of the case requires, or entertain an application under rule 6(2Xb) of these Rules, in order to safeguard the right of appeal, notwithstanding the fact that no aoolication for that puroose has first been made to the Hieh Court".

Having regard to the facts surrounding this case and the properties involved in the estate, justice demands that this Application is considered on merit.

The Preliminary objection is accordingly overruled.

Page 7 of 10

# The issue is whethel this Application meets the conditions for the grant of an injunction.

Rule 6 (2), 42 (2) and 43 of the Judicature (Court of Appeal) Rules give wide discretion to this Court to grant an order of injunction for purposes of preserving the right of Appeal where such party has lodged a notice of Appeal in accordance with Rule 76 of the Rules of this Court, on such terms as the Court may deem just.

For a temporary injunction to be granted, Court is guided by established principles as laid down in the case of Shiv Construction V. Endesha Enterprises ttd S. C. C. A No.34 of 1992 where it was held that:-

"The Applicant must show a prima facie case with a probability of success. An injunction will not normally be granted unless the Applicant might otherwise suffer irreparable injury, which could not be compensated in damages. When the Court is in doubt, it will decide the application on a balance of convenience".

An order for a temporary injunction is granted so as to prevent the ends of justice from being defeated. This is the essence of the provision of Rule 2 (2) of the Rules of this Court.

## A prima facie case will a likelihood of success

The first consideration is whether the Applicant demonstrated that the there is a prima facie Appeal with a likelihood of success. The Applicants averred in paragraphs 4 and 5 that they have filed an Appeal seeking to challenge the findings and orders of the High Court whose effect was that the Respondent was legally married and she is therefore a surviving spouse. They attached a copy of the Memorandum of Appeal and the contested Judgment.

> Page 8 of 10 ftl

From my reading of the grounds of Appeal contained in the memorandum of Appeal, the Applicants raised pertinent issues that merit a hearing on Appeal as to whether the trial judge did not misdirect himself in his findings. Considering the facts before me, I find that the Applicants illustrated that they have a prima facie case that merit consideration by this Court.

# lrreparable damage or that the Appeal will be rendered nugatory if a temporary iniunction is not granted.

lrreparable 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. See Geilla V' Cassman Brown & Co. [1973] E. A. 3s8.

The Applicants have shown in paragraphs 6 and 7 of the affidavit in rejoinder that the Respondent commenced carrying out the duties of an administrator by evicting the former manager from one of the buildings, requiring him to hand over all certificates of title as well as attempting to evict the mother of the Applicants from her residence.

ln effect, it is shown that the Respondent will go ahead and distribute the estate as the administrator of Were Patrick which power is being challenged. As such, it would be a mockery of justice if the Respondent carried out the duties of an administrator before the Appeal is heard and determined.

It is trite that where a party is exercising his or her unrestricted right of Appeal, and the Appeal has a likelihood of success, it is the duty of Court to make such orders so as to prevent the Appeal from being rendered nugatory, if successful.

(

I therefore find that the Applicants have proved on a balance of probability that they will suffer irreparable damage or that the Appeal will be rendered nugatory if a temporary injunction is not granted.

## Balance of convenience

ln this Application, the Applicants have attached a Memorandum of Appeal which states the grounds on which the Appeal is premised, they also wrote a letter requesting for the record of proceedings and are in possession of some of the estate properties.

It is my considered finding that the Applicants meet the conditions for the grant of an order of injunction. I therefore grant this Application with the following orders;

- a) An injunction is hereby issued maintain the status quo of the estate of the late Were patrick as at the time of filing Civil Suit No. 006 of 2022 and restraining the Respondent or her servants/agents from transacting in the estate as an administrator until the disposal of Civil Appeal No. 0309 of 2024. - b) The costs of this Application shall abide by the outcome of the Appeal.

14^ Dated at Kampata this ....t9\*...... aay ot ,.4<\*- zoz+

> Moses Kazi wumi JUSTICE OF APPEAT