THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
ctvtl APPLICATIoN NO.391 0F 2024
ARISING OUT OF CIVIL APPEAL NO.591 OF 2024
5 (ALSO ARISING OUT OF MTSCELLANEOUS APPLICATION NO. 1143 OF
20241
(ARTSING OUT OF CIVIL SUlr NO. LLLT OF 2023)
ROSE N. NAMUKASA
10 (ADMTNISTRATRIX OF THE ESTATE
oF THE LATE M.N. SESIRIYA) APPLICANT
VERSUS
15 1. NAMAYANJA MAYANJA GRACE
(DEFENDING THROUGH HER LAWFUL
ATTORNEYS, SUZAN MUNABI,
NANTALE AGNES AND BAKAHUNA JOSEPH}
z.GEO OILS (U) LTD
20 3. KIBWIKA GEOFREY
4. NCBA BANK UGANDA LIMITED
5. MUKIZA VALLEY RESPONDENTS
(Application arising from the ruling and orders of the High Court of
25 Uganda at Kampala (Natuzze Aisha Batala, J.) delivered on 5th May
20241
CORAM: MOSES KAZ IBWE KAWUMI, JA.
SINGLE JUSTICE
30 RULING
The Application was brought under Section 98 of the Civil Procedure Act,
Rules 2 (2'),6 (21 (b), 53 of the Judicature (Court of Appeal Rules)
Directions S.t. L3-10 and al! enabling provisions of the law seeking for;-
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a) An order of a temporary injunction to issue restraining the
Respondents, or their agents, servants, assignees, successors in
title and or persons claiming under them from transferring, dealing
with , developing, constructing or, selling or interfering with the
5 land comprised in Busiro FRV 1006 Folio 13 Plot 8- L2/ 8a- LZA until
disposal of the Appeal.
b) Consequential order that the transfer of the land comprised in
Busiro FRV 1006 Folio 13 Busiro FRV 1006 Folio L3 Plot 8-L2/ 8a-
10 LzA to the 5th Respondent through the recalled Court order
registered under instrument No.WBU-00389379 on the Certificate
of title be cancelled.
c) The costs of this Application be provided for
15
Background
169 2nd Respondent, Geo Oils (U) LTD mortgaged land comprised Busiro
FRV L005 Folio 13 Plot8-72/8a-12A (herein after referred to as ,,the suit
land") to the 4th Respondent NCBA Bank Uganda Limited however, the
zo 2nd Respondent defaulted on repayment terms.
The 4th Respondent initiated recovery measures and upon advertising
the suit land, the L't Respondent instituted Civil Suit No.1117 of 2023
claiming equitable interests in the suit land and sought for among others,
2s declaration that the mortgage on the suit land was illegal.
Meanwhile, the 2nd Respondent and the 4th Respondent entered into a
consent Judgment where they agreed to sell the suit land by private
treaty and the proceeds to be applied to the loan repayment. Aggrieved
30 with the consent Juogment between the 2nd and 4th Respondent, the
Applicant applied for review vide Miscellaneous Application No. j.143 of
2024.
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The application for review was dismissed with costs on the basis that the
applicant had no locus standi and therefore she was not aggrieved party.
Dissatisfied with the dismissal, the Applicant filed Civil Appeal No.591 of
2024 also filed this Application for the orders stated above.
5
Grounds of the Application
The grounds of this Application are set out in the Notice of Motion as
10 follows;-
L. That the Applicant as an administratrix of the estate of the late
Sesiriya N. Musubika, filed Civil Suit No.31 of 20L4 against the 2nd
Respondent for recovery of the suit land.
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2. That during the pendency of Civil Suit No.31 of 20L4, the L't
Respondent and a one Namayanja Mayanja filed Civil Suit No.1LL7
of 2023 claiming equitable interests in the suit land.
20 3. That Civil Suit No.LLLT of 2023 was settled by way of consent
between the Ltt, 2nd and 3'd Respondents and it resulted in the sale
of the suit land to the 5th Respondent.
4. That the consent judgment was illegal for the following reasons:-
25 a)The Civil Suit No.1LL7 of 2023 offended the lis pendens rule.
b)That there was already a temporary injunction barring the
sale of the suit Iand.
30 c) That the L't Respondent is non-existent and as such she could
not conse nt.
d)That the trialjudge did not visit the locus in quo.
35 e)That the loans claimed to have led to the sale of the suit land
a re non- existent.
f) That the 5th Respondent was not even a bidder so as to qua,ify
as a buyer.
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g)That the illegal consent order was used to release the
rnortgage.
h)That the suit land was transferred to the 5th Respondent
5 without paying stamp duty.
5. That she filed an application for review and setting aside of the
consent judgment before the trial judge but it was dismissed.
10 6. That she has filed Civil Appeal No.591 of 2024 in this Court, which
will be rendered nugatory if this application is not granted.
7. That she will suffer irreparable damage if this application is not
granted and the pending appeal will be rendered nugatory.
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8. That the application was filed without un due delay.
9. That it is just and equitable that this application is granted.
20 The application is supported by the affidavit of the Applicant that
expounds on the above grounds.
The Application was opposed by affidavits in reply deposed by Suzan
Munabi, the L't Respondent's lawful attorney, Brenda Kokwijuka, the 4th
25 Respondent's Manager Legal Services and by Mikiza Valley the 5th
Respondent.
The Respondent's contention is that the application is barred by law
Lst
and an abuse of the Court process. Shealso denied the contents of the
affidavit in support of the application and contended that she is not a
30 fictitious person and that the summons in Civil Suit No. LLLT of 2023
were personally served upon her.
The L't Respondent claimed to have purchased her equitable interest
from Hajji Khalid Masanga and took possession of the suit land without
a ny interference.
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Shefurther deposed that sometime in the year }OLL, the znd and 3'd
Respondents purchased part of the neighbouring land from a one
Simbwa tsaac but erroneously included part of the L't Respondents
interest while surveying of the acquired portion.
5 That the 2nd Respondent obtained a mortgage which affected the
affected part, without her consent but later agreed to pay her. That
when the mortgagor failed to pay, the property was advertised which
prompted the Respondentto institute Civil Suit No. 1LL7 of 2023 in order
to protect her interests.
10 That the temporary injunction issued in respect to the suit land lapsed
with the dismissal of Civil Suit No.3L of 2OL4in the year 2018. That the
consent was not illegal and as such, this application ought to be
dismissed with costs.
The 4th Respondent contended that the application is misconceived,
15 barred by law and an abuse of the court process. That the affidavit in
support of the Application and the supplementary affidavit are defective
and ought to be struck out. That the Application is moot and was
overtaken by events.
It was also averred for the 4th Respondent that the znd Respondent
20 obtained a loan facility which was secured by the mortgage of the suit
land. That the 2nd Respondent defaulted on repayment which prompted
the 4th Respondent to initiate recovery measures.
That the recovery measures were impended by the filing of Civil Suit
No. LLLT of2023 which was later settled between the parties by
25 consenting to a sale of the suit land by private treaty and the proceeds
to be used to repay the loan. That upon sale to the 5th Respondent and
completion of the loan repayment, the mortgage was released.
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The 5th Respondent opposed the application on among other grounds,
that the Application is incompetent and devoid of any merit as the
Applicant did not obtain leave to appeal against the orders before
lodging the appeal.
5 It was further averred that the Application is moot since the consent
orders in Civi! Suit No.1LL7 of 2023 were already executed and the suit
land was already disposed of and sold to third parties who are not parties
to this Application nor to the appeal. That the alleged interlocutory
orders of a temporary injunction lapsed upon the dismissal of civil suit
10 Itlo. 31 of 20L4.
ln rejoinder to the L't Respondent's affidavit in reply, the Applicant
averred that the deponent of the affidavit in reply does not have capacity
to do so and she was neverserved with Court summons in Civi! Suit No.31
of 20L4. The Applicant contended that the L't Respondent is fictitious
15 and that there is a valid and subsisting temporary injunction following
the reinstating of Civil Suit No. 31 of 20L4 by the Court of Appeal Civil
Appeal No.118 of 20L8.
ln rejoinder to the 4th Respondent's Affidavit in reply, the Applicant
20 denied the contents of the 4th Respondent's affidavit in repty and
contended that the suit was filed by a fictitious person and that as such
the mortgage was not legally released. That there is a pending appeal
which necessitates an injunction so as not to render it nugatory.
25 The Applicant did not file an affidavit in rejoinderto the 5th Respondent's
affidavit in reply.
Representation
When the Application came up for hearing on September 4, ZO24
30 Learned Counsel Mukuve Mugaga appeared for the Applicant, Fahad
Kya z.ze for the L't Respondent, Kika bi lbrahim for the znd and 3'd
.\. d
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Respondents, Patricia Akampurira for 4th Respondent and Mwanje
Lawrence the 5th Respondent. The parties were absent.
Counsel filed written submissions which were adopted and consider ed
by the court to render the ruling.
5 Consideration of Court
lhave considered the application and all affidavits filed by Counsel, the
submissions on record and the authorities cited as well as those not
cited.
The law governing applications for injunctions in this Court is set out in Rule 6
10 (2) (b) of the Judicature (Court of Appeal Rules) Directions S.l. L3-10 which
provides that:-
"6 (2) Subject to sub-rule (L) of this rule, the institution of an oppeal
shall not operate to suspend ony sentence or stay execution but the
Court moy-
15 a) ..
b) ln ony civil proceedings, where o Notice of Appeol hos been lodged
in occordonce with Rule 76 of these Rules, order a stoy of execution,
or injunction or stoy proceedings os the Court moy consider just."
20 Rule 76 has got three sub-rules. The most relevant sub rule here is rule (1) und
it provides thaU-
"Any person who desires to oppeolto the Court sholl give notice in writing
which shall be lodged in duplicote with the Registrar of the Cottrt of
Appeol."
25
Clearly there are two important elements which must be fulfilled before an
application for stay or for an injunction may be entertained, namely-
1) There must be a valid Notice of Appeal in writing.
30 2l It must be lodged in accordance with Rule 76 which means it
must be lodged within the prescribed time.
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The 5th Respondent objected to the Application on grounds that the Notice of
Appeal has neither been served upon his Counsel nor was it personally served
upon him. The 5th Respondent further faulted the Applicant for failure to seek
5 leave to Appeal the decision dismissing the application for review and
categorized this application as incompetent.
I'his Application arises from an Appeal against a ruling of my learned sister
Hon. Lady Justice Aisha Naluze Batala dated 5/0612024. The appeal
10 emanated from a ruling in an application for review filed by Counsel for
the Applicant under Sections 98 and 82 of the Civil Procedure Act and
Order 46 rule 1 (al,,2,4 and 46 rule 8 of the Civil Procedure Rules.
Under Order 44 rule (lxt)
and (21 of the Civil Procedure Rules, Orders
15 made under rule 4 of Order 46 granting an application for review are
appealable as of right.Appeals from other rules under Order 46 are not
appealable as of right, which implies leave to appeal must first to be
sought first from the trial Court then from the appellate Court if such
leave is not granted.
20 Counsel for the Applicant concedes that he never sought the necessary
leave. The effect of not seeking the necessary leave is that the Notice of
Appeal was filed in a matter that is not amenable to an automatic right
of Appeal since the requisite leave to Appeal was never sought.
According to Attorney General Vs. Shah (No. 4) lL971l at page 50 Spry
25 Ag. P held:-
"lt hos long been estoblished ond we think th'ere is omple
authority for saying thot oppellate jurisdiction springs only from
statute. There is no such thing os inherent oppellate
ju risd ictio n ."
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The effect of filing appeals from rulings arising from interlocutory
applications without securing the leave to appea! was well settled in the
case of Lukwago Erias & Anor Vs. Attorney General & Another, SC. Civil
Application No. 5 of 20L4 where it was held that;-
5 "The right of appeal is o creature of stotute. There k nothing
known in law os an inherent right of appeal. The legal
foundation for opplicotions for stay of execution pending appeal
is the right of appeal to the proper Court and the fact that the
Notice of Appeal has been filed in that Court. Where the Notice
10 of Appeal has been filed but the right of oppeal does not exist,
the Notice of Appeol is incompetent and cannot form the basis
for an application for stay of execution pending oppeal; os there
is no pending oppeol."
15 It follows that, where a Notice of Appea! has been filed but the right of
appeal does not exist, the Notice of Appeal is incompetent and cannot
form the basis for an application for a temporary injunction pend'ng
appeal as there is no competent pending appeal.
20 The inherent powers of Court under rule2 (2) rules of the Court can not
be invoked by the Court in the absence of the right of Appeal.
Premised on that alone, I hold that the Application is incompetent und I
do not see any reason to delve into the merits of the Applicatioir irr the
absence of a valid Notice of appeal.
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ln the result, I uphold the preliminary objections raised by Counse! for
the 5th Respondent. This application is dismissed with costs to the
Respondents.
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30 Dated and delivered at Kampala this ...[J...day of . ..4.$5.h* .2024.
@_
Moses Kazibwe Kawumi
JUSTICE OF APPEAL
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