Yahaya and 2 Others v Nabunya and 3 Others (Civil Application 89 of 2023) [2023] UGCA 163 (25 April 2023)

Full Case Text

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# **CIVIL APPLICATION NO. 89 OF 2023**

(Arising out of Civil Application No. 26 of 2021)

| 5 | 1. YAHAYA YUSUF | |----|------------------------------------------------------------| | | 2. NURDIN YUSUF | | | 3. BASHIR YUSUF ::::::::::::::::::::::::::::::::::: | | | VERSUS | | | 1. SAUDA NABUNYA | | 10 | 2. REHEMA NANFUKA | | | 3. MAYI NAKUBULWA | | | 4. GALIKUWA MICHAEL :::::::::::::::::::::::::::::::::::: | | | |

## **BEFORE: HON JUSTICE OSCAR KIHIKA, JA**

*(Sitting as a single Justice)*

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### **RULING OF COURT**

This application was brought under Article 128 of the Constitution, Rules 2(2), 6(2) (b), 42(2) and 43(1) & (2) of the Judicature Court of Appeal Rules Directions seeking for orders that;

1. A temporary injunction Order doeth issue restraining the 20 Respondents, their agents, servants and all attorneys or persons acting on their behalf from executing and/or enforcing the judgment and orders of the High Court delivered by Hon.

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Justice Batema N. D. A on the 2"d day of November 2022 unnl the determination of Civil Appeal No. 532 of 2022.

2. Costs of the application abide the result of the appeal.

# Background

s The background to the application, as can be determined from the Applicants'pleadings which, in my view, were somewhat clumsily crafted, is as follows;

The Applicants, on or about the 8th day of August 2000, entered into a tenancy/lease agreement with the 1"1, 2"d and 3'd Respondents for the lease of the suit land comprised in Block 123 Plot 1177 East Buganda for a period of 49 years. The Applicants took possession of the suit land and constructed thereon a petrol station and other related developments. The Applicants had also paid to thelst, 2nd and 3rd Respondents the agreed premium. 10

The Applicants were apparently prevented from registering their lease interest in the suit land by the lst, 2nd and 3rd Respondents, who in turn appear to have transferred the suit land to the 4th Respondent to the detriment of the Applicants' interests. The 4th Respondent then attempted to evict the Applicants, consequent upon which the Applicants filed High Court Civil Suit No. 26 of 2O2l in Mukono High Court wherein they sought a permanent injunction restraining the Respondents from dealing or exercising any right in the suit land. The Applicants also prayed for a number of declarations pertaining to the suit land, amongst which was a declaration that the 15 20

transaction between the lst, 2nd and 3rd Respondents and the 4th Respondent was unlanr,{ul, irregular and fraudulent.

From the pleadings and evidence on record, it appears that the suit was dismissed for failure to disclose a cause of action. However, the decree attached does not reflect this. According to the decree, on the

2"4 day of November 2022, Hon Justice Batema ordered and decreed as follows;

- 1. That the rent agreement between the parties is cancelled. - 2. The Plaintiffs are ordered to pay the rent arrears to the 4th Defendant from the date he became their Land lord. - 3. The Commissioner Land Registration is hereby to ordered to cancel the Certificate of Title illegally issued for the land comprised in East Buganda Block 123 Plot 1777 land at Ka5runga in Kayrnga District, - 4. That the 4th Defendant is free to survey and register the land he bought into his narnes. 15 - 5. Costs of the suit are awarded to the Defendants.

Being dissatisfied with the judgement and orders of Hon. Justice Batema, the Applicants hled a notice of appeal, applied for record of proceedings and subsequently filed Civil Appeal No. 532 of 2022 in the Court ofAppeal.

On the 30th of January 2023, the 4th Respondent through his advocates, M/s Senteza & Co Advocates, wrote a letter to the Applicants demanding for rent arrea-rs totaling to the amount of Uganda Shillings 170,OO0,OO0/=with effect from 23,a March 2O2O.

The Applicants were given 14 days within which to pay the monies demanded.

The Applicants now seek a tempora-ry injunction Order restraining the Respondents, their agents, servants and atl attorneys or persons acting on their behalf from executing and/or enforcing the judgment and orders of the High Court delivered by Hon. Justice Batema N. D. A on the 2nd day of November 2022 until the determination of Civil Appeal No. 532 of2022

The grounds in support of this application are set out in both the Notice of Motion and affidavit in support of Yahaya Yusuf which briefly states; 10

- 1. That the Applicants filed Civil Suit No. 26 of 2027 in the High Court of Uganda at Mukono against the Respondents and the sarne was dismissed on grounds that it did not disclose a cause of action. - 2. The Applicants filed an appeai in this court against the judgment of Hon. Justice Batema N. D. A on the 2"d of November 2022 and the same is pending hearing before this court. - 3. The said appeal challenges the High Court decision that the Applicants pay rent to the 4th respondent. - 4. The Applicants have a valid subsisting equitable lease and/or running tenancy on the suit land having hired and paid for the same from the 1"t, 2"d and 3.d Respondents. - 5. That the Applicants have paid rent until 2O3 1 and are in active possession and use of the suit land.

- 6. During the subsistence of the tenancy, the Applicants discovered that the 1"t, 2"d and 3'd Respondents had fraudulently transferred the suit land to the 4th respondent's names. - 5 7. The 4tt respondent is now demanding for rent through M/S Senteza & Co. Advocates by a letter dated 3O,h January 2023 and are at a risk of being evicted. - 8. In order to ensure that the appeal is not rendered nugatory, the Applicants are seeking for a temporary injunction to stop the respondent from executing the decree we appealed against. - 9. The appeal has a high likelihood of success and in order to protect the applicant's interests in the land, a temporary injunction should be issued to stop the respondent from disposing of the property. - The respondent did not file any allidavit in reply. 15

When this application carne up for hearing on the 24th of March2023, the applicant was represented by Counsel Ishaq Dhakaba while the respondent was unrepresented, despite having been duly served. The application was thus heard exparte.

Counsel for the Applicants filed written submissions which, with the leave of court, were adopted as submissions on record. 20

# Applicant's submissions

Counsel Dhakaba submitted that the conditions for an applicant to prove before the grant of an order of a temporaqr injunction were laid

out in Shiv Construction Vs Endesha Enterprises Ltd Supreme Court Civil Appeal No. 34 ol 1992 to wit; there is a prima facie case with a probability of success; the applicant will suffer irreparable injury which would not adequately be compensated for in damages and lastly, if the court is in doubt, it would decide an application on a balance of convenience Counsel argued that the Applicants have an appeal pending hearing before this court and at this stage, court does not delve deep into the merits of the case to see if the applicant has a plausible case but rather, court determines that the claim is not frivolous or vexatious.

Counsel submitted that the applicant will suffer irreparable injury that cannot be adequately compensated in damages. Counsel relied on the l"t applicant's afhdavit in support of the application and argued that the Applicants have already received a demand notice to pay rent yet the quesdon of the subsisting tenancy between the Applicants and the lst, 2nd and 3.d Respondents has not yet been answered on appeal by this court. That the Applicants have a subsisting tenancy and have paid rent till 203 1 and receipts of the sarne are attached to the applicant's affidavit in support of the application. Counsel argued that the Applicants will suffer irreparable damage if this application is not granted. 15

Counsel contended that there is a threat to evict the Applicants for alleged non-payrnent of rent by the 4th respondent irrespective of the appeal. Counsel relied on Section 29(2) of the Landlord and Tenant Act 2022 which gives the landlord powers to re-enter the rented

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property and take possession and submitted that the 4th respondent has indicated this as his course. Counsel prayed that this court exercise its powers under Rule 6(2) (b) of the Rules of this court

#### 5 Consideration of the application

The jurisdiction of this Court to grant an injunction is set out in Rule 6(2) (b) and Rule 2l2l of the Judicature Court of Appeal Rules Directions SI13-1O which mandates the Court to grant a stay of execution, an injunction or order a stay of proceedings on such terms as the Court may deem ht. This Court has inherent powers to make such orders as may be necessary for attaining the ends of justice.

I must note that this is a substantive application for the grant of an order of a temporary injunction that is being entertained by a single judge of this Honourable Court. This court has held in Uganda

Revenue Authority Vs National Social Security Fund Civil Application No. 43 of 2023, that a single Justice of Appeal does have jurisdiction to hear and determine this substantive application for a temporary injunction. 15

For a temporary injunction to be granted, court is guided by certarn principles which were laid out in the case of Shiv Construction V Endesha Enterprises Ltd S. C. Civil Appeal No. 34 of L992 where it was held that; 20

"The applicant must show a pima facie case with a probabilitg of success. An injunction uill not normallg be granted unless the applicant might otherutise suffer irreparable injury. uhich could not be compensated in damages. Whenthe court is in doubt it will decide the application on the balance of conuenience."

Thus, the rules governing the grant of a temporarSr Injunction are;

- l. The granting of a temporary injunction is an exercise of judicial discretion and the purpose of granting it is to preserue the matters in the status quo until the question to be inuestigated in the main suit is finally disposed of. - 2. The conditions for the grant of the interlocutory injunction are; - 10 1 Firstlg tha| the applicant must show a pima facie case with a l)robabilitu o.,f success. - 11. Secondly, such injunction will not nonnallg be granted unless the applicant might otherutise suffer irreparable injuru which utould not adequatelu be compensated bu an award of damaqes - 15 111. Thirdly if the Court is in doubt, it would decide an application on the balance of conuenience.

An order for a Temporary Injunction is granted so as to prevent the ends of justice from being defeated. The applicant, in the Notice of Motion, prayed for an order of a temporary injunction against the Respondents from executing the judgment of the High Court in Civil Suit No. 26 of 2021. In essence, the Applicants seek to stay the execution of the Judgment and Orders of the High Court in Civil Suit No.26 of2O2l.

Rule 2(2) of the Rules of this Court grants this court powers to make such orders as a-re necessary to attain the ends ofjustice. It provides;

## 2. Appllcatlon.

(2) Nothing in these R,iles shnll be taken to limit or otherwise affect the inherent potuer of the court, or ttre High Court, to make such orders as maA be necessary for attaining the ends ofjustice or to preuent abuse of the process of ang such court, and that power strall ertend to setting aside judgments uthich haue been proued null and uoid afier theg haue been passed, and slwll be exercised to preuent abuse ofthe process of any court caused bg delag.

I shall, under Rule 2(2) above, proceed to determine the merits of this application. The Supreme Court of Uganda in the case of Hon. Theodore Ssekikubo & Others vs Attorney Geaeral & Others Constitutional Application No. 6 of 2013, re-stated the principles governing grant of stay of execution to be as follows;

> (1) Applicant must establish that his appeal has likelihood of success or a pima facie case of his ight of appeal.

A fhd the applicant will suffer irreparable damage or that the appeal uill be rendered nugatory if a stag is not granted.

(3) If 1-2 aboue haue not been established, Court must consider where the balance of conuenience.

The main issue for determination by this Court is whether the applicant has adduced suffrcient reasons to justify the grant of a stay of execution.

- The lrrst consideration is uhether the Appllcants haoe s demonstrzted to thls court that the appeal has q ltkellhood of success. The Supreme Court in the case of Gashumba Maniraguha vs Sam Nkudiye Civil Application No. 24 of 2015, held that the likelihood of success, is the most important consideration in an application for stay of execution. - The Applicants, in the affidavit deponed by the l"t applicant paragraphs 5 and 6 stated, that the Applicants have a valid subsisting tenancy on the suit land having paid rent until 2031 to the 1"t, 2"d and 3'd Respondents and attached copies of the agreement and payment receipts. 10

The Applicants are in active possession and during the tenancy, they discovered that the lst, 2nd and 3.d Respondents had fraudulently transferred the suit land to the 4tt' respondent's narne and the 4th respondent is now demanding for payment of rent. The 1"t applicant has attached a draft Memorandum of Appeal marked annexture 'M' to his afhdavit and from my brief reading of the grounds of appeal, the applicant raised pertinent issues that would call for Court of Appeal to determine whether the trial Judge did not misdirect himself. Considering this set of facts, it is my considered view that the Applicants have demonstrated a prima facie case which merits consideration by this court. 15 20 25

## Whetlrcr Appllcant wtll suffer lrrepardble damage or thot tle appeal utlll be rendered nugatory lf a stag is not granted.

Counsel for the applicant has submitted that the Applicants are in active possession of the suit and have a-lready paid rent to 2031 .

5 The 4th respondent is however demanding rent from the Applicants and they are at a risk of being evicted from the land.

In Giella v. Casgman 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 material one that is; one that cannot be adequately atoned for in damages.

The applicant, in paragraph 2 of his affidavit in support of the application, stated that they hled Civil Suit No. 26 of 2O2l and the sarne was dismissed. The 1st applicant attached the plaint marked

- a-nnexure 'K'to the a-ffidavit and in the plaint, the applicant/plaintiff claimed that both parties entered into an agreement for hiring the suit land comprised in Block 123 Plot ll77 East Buganda in which the same was hired for a period of 49 yea-rs. The applicants immediately took possession of the said suit land and developed it and constructed a petrol station thereon. I reiterate that the 4th 15 20 - respondent is already demanding for rent and the applicants, who are running a petrol station on the suit property, are at a risk of being evicted.

In the case of American Cynamide vs Ethicon [19751 1 ALL E. R. 5O4 it was held; 25

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\*The gouerning principle is that the court should first consider whether if the Plaintiff raere to succeed at the tial in establishing his right to a permanent injunction he would be adequately compensated bg an award of damages for the loss he would hnue sustained as a result of

- 5 the Defendant's continuing to do uhat was sought to be enjoined between the time of the Application and the time of the tial. If damages inthe measure recouerable at commonlaw would be adequate remedy and the defendant would be in a financial position to pag th.em, no Interloantory Injunction should normallg be granted..." - The l"t applicant has demonstrated in his affidavit in support of the application that the Applicants will suffer irreparable damage if they are evicted by the 4th respondent despite having paid rent to 2031. It is trite that where a party is exercising its unrestricted right of appeal, and the appeal has likelihood of success, it is the duty of the Court to make such orders as it will prevent the appeal, from being rendered nugatory, if successful. 10 15

## Balance of Conuenlence

In the Osman Kassim Vs Century Bottling Company Ltd Civil Appeal 34 of 2OL9, the Supreme Court had this to say when it was considering the issue of balance of convenience; 20

> The status quo is that the Court of Appeal ho,s dismissed th.e applicant's appeal with costs to the respondent. He is in the process of filing an appeal to this Court against that decision. Houteuer, in the absence of any document indicating the grounds of the intended appeal on record, we are of the uieut that the

balance of conuenience fauors the respondent ttthich has a Judgment in its lwnds"

In the instant case, the Applicants have attached a Memorandum of Appeal which states the grounds upon which the appea-l is premised.

Secondly, the Applicants are in possession of the suit property and carrying out business thereon.

It is therefore my considered view that the Applicants meet the conditions for the grant of an order of stay of execution. I thus allow this application and make the following orders;

1. An order of stay of execution is hereby granted restraining the Respondents, their agents, servants and all attorneys or persons acting on their behalf from executing and/or enforcing the judgment and orders of the High Court delivered by Hon. Justice Batema N. D. A on the 2"d day of November 2022 :unttl, the determination of Civil Appeal No. 532 of 2022. 15 10

2. Costs shall abide the outcome of the appeal.

o Iso order

Date this ...a. Eg day of ...... 2023 l/ OSC 25 JUSTIC N KIHIKA 2A J

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