Muluta v Kalungi (Civil Application 483 of 2024) [2025] UGCA 17 (30 January 2025)

THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPLICATION NO. 0483 OF 2024

ARISING FROM APPEAL NO. 3 I4 OF 2O2O (Coram: Cheborion, Gashirabake. & Mugenyi, JJA)

MULUTA WILSON WILLIAM :]:]:::]::::::::::::::::::::::::::::::::APPLICANT VERSUS

KALUNGU FARM LIMITED RESPONDENT

RULING OF COURT

^Introduction

tl] This application was brought b1' Notice of Motion under Rules 2(2),6(2)(b) and 43 of the Judicature court of Appeal Rules) Directions a SI l3-10 and Section 33 of the Judicature Act and Section 98 of the Civil Procedure Act) for orders that:

l. An order doth issue against the respondent, its agents, ser-vants and persons claiming under it, staying the execution and implementation o,f the Decree and all orders of this court in Civil Appeal No. 0314 of 2020 and further restraining the respondent and its agent,s .from moving the Commissioner Land Registration to cancel the suit certificate of title described as Bulemezi Block l5 Plor 96 and 97 or the applicants names.from the register and further restraining the Respondent und its agents from cancelling the mailo certificate of Title describing the suit land as Bulemezi Block l5 Plot 96 and 97 initially registered in the numes of the Administrator General and the respective titles arising ./irtnt subdivisions therefrom, .from evicling or otherwise dispossessing the applicant or taking possession of it until the final


disposal of the Applicant's appeal against the said judgment and deuee of this cotrl

- 2. If at the time of hearing this application the execution of the decree in Civil Appeal No. 314 of 2020 is already elJbcted, a temporary injunction order restraining the respondent, its agents, servants and or persons claimingfrom itfrom alienating the suit land to any third party until the determination of the applicant's appeal to the Supreme Court. - 3. Costs of this application be provided for - [2]The application is premised on the grounds set out in the notice of motion and the supporting affidavit of Muluta Wilson William. The gist of which is that: - (a) The Applicant filed a notice of appeal challenging the Decree and orders in Civil Appeal No.03 14 o.f 2020. - (b) That there is an imminent danger and threat of execution since the decree is self-executing and therefore capable of being executed by the Commissioner Land Registration upon being served with the decree. - (c) The order of stay of execution being sought is intended to safeguard the Appl icant's r i ght of appeal.

t3] The respondent deposcd an aflldavit in rcply sworn by Dr. Mumtaz Kassam, opposing the application on grounds that:

(a) The application is moot since the decree of this court has already been enJbrced by the respondent and Commissioner Land Registration who has cancelled the tilles as ordered bv court.

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(b) That the application locks meril and has not met the conditions for grant of an application.fbr stay.

t4] At the hearing of this application, the partics agreed to rcly on their written submissions. Court allowed thern to makc oral highlights.

Ileprcscntation

t5] At the hearing ol the applicalion, Mr. Ncstor Byamugisha reprcsented the Applicant. The respondcnt was rcprcscntcd by Mr. Barnabas 'lumusingize and Allan Waniala. The parties filed writtcn submissions.

Backgrou nd

t6l 'Ihe Respondent filed Civil Suit No. 671 of 2014 before the IJigh court against the Applicant and 8 othcr l)cl'cndants. 'l-hc suit was lor recovcry of land situated at Kalungu in Luwcro l)istrict. 'Ihc Respondent averred that it held ^a Certificate of Title for the suit land dcscribcd as l"reehold Volume 2 Folio 8 known as Kalungu Estate and was registcrcd on thc said Certificatc of 'Iitlc on l gth April, 1968. That in 20 l3 the Commissioncr lbr land rcgistration issued another Certihcate of Title for the suit land and was dcscribed as l]ulemezi Block 15 Plot 96 and97. 'l'he Administrator General was indicatcd as thc rcgistered proprietor of thc Mailo title.

17) The trial of the suit was handled by Bashaija J who dismissed the Respondent's suit with cosls and also ordcrcd canccllation of thc Rcspondent's Freehold title.

t8] 'l'hc Respondcnt was dissatisllcd with thc dccision ol'the lcarncd Judge and appealcd to this court vidc Civil Appcal No.3l4 of 2020 and the judgment of the Iligh Court was set aside on thc l5'r' August, 2024 with ordcrs that:

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- a) The certificate of title describing the suit land as Freehold Register Volume 2 Folio 8 and known as Kalungu Eslate is valid. - b) The Mailo certificate of title de.scribing the land as Bulemezi Block 15 Plots 96 and 97 inilially registered in the names of the Administrator General and respective titles arising from subdivisions therefrom are set aside - c) The Respondent shall pay the Appellants costs in this court and in the court below.

t9] The Applicant aggrieved with the decision and orders of this court intends to appcal to thc Supreme Court and now sccks to stay the cxecution of thc decree pending thc determination of his appcal to thc Suprcme Court.

Suhmissions for thc Applicant

[0] In resolving this application counsel discusscd thc principles governing thc granting of stay of execution namely;

> l. The Applicant must establish that his appeal has a likelihood of success; or a primafacie case oJ his right ofappeal.

> 2. The Applicant will suffer irreparable damage or the intended appeal will be rendered nugcttory rf a stay is nr granted.

> 3. If I and 2 above have not been established, the Court musl consider where the balance ofconvenience lies.

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4. The Applicant must also astablish that the application was instituted without delay.

I t] Counsel for the applicant raisccl the issue for determination by this court as whether this application meets these principles.

- ^I^I2] It was submitted for the Applicant that: - l. The notice of Appeal rvas fllcd on the 16108/2024 through ECCCMIS following the delivery ot' the judgurent on the 1510812024 and that therefore, the I't condition of the existence of the Notice of Appeal had been fulfilled. - 2. The application was filed without delay since the judgment was delivered on 1510812024 and the Noticc of Appeal was lodged promptly on 16t0812024. - 3. Counsel tbr the applicant subrnitted that the appeal has a high likelihood of success. lt was subrnittecl that the memorandum of appeal containing the proposed grounds ol appeal and that the said grounds in the draft memorandum show that the intended appeal is not frivolous. It was further submitted that the grounds in the drafl memorandum show that the appeal raises issues that rnerit consiclcration by the Supreme Court. - 4. It was argued that the Applicant will suffer irreparable damage and the appeal will be rendered nugatory if stay is not granted. Counsel for the Applicant subrnitted that the orders of the court the applicant intends to appeal are self-executing anil that the Commissioner for land registration only requires to be served u ith the extracted decree and he will effect the cancellation of the mailo title comprised in Bulemezi Block l5 Plot 96 and

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97 by a stroke of a pen. Counsel also submitted that if the stay is not granted, the applicant will be clispossessed and liable to immediate evlctron.

5. On security for due performance, counsel for the Applicant submitted that although the applicant expressed willingness to pay security for costs this court should decline to order deposit of security for costs.

Submissiens of the Respondent

[13] On the other hand, counsel fbr thc Respondent opposed the applicant's application and the submissions in support.

It was submitted that the Applicant's proposed grounds of Appeal have no merit

[4] It was submitted for the Respondent that court must balance the interest of the judgrnent creditor to enjoy the benefits of his or her litigation and the appellant(s) right to appeal. Counsel relied on the case of Wilson Mukiibi V James Ssemusamba, Civil Application No. 9 of 2003 to back his argument.

[ 5] It was submitted by the Respondent that the Applicant is not in possession of any part of the suit land. On the contrary, the Respondent is in full possession of the suit property. That possession is vested in the Respondent as the holder of the Freehold Certificate of Titte and to this end, the Applicant has not showed any legal right to prove irreparable damage through eviction from the suit property as he alleges.

[ 6] lt was also submitted that the applicant has not demonstrated on record that he has any interest in the suit having pleaded in his detbnce in the lower court that the suit land had already been subdivided.

[7] Counsel for the Respondent submitted that the present application is moot because the orders of court of appeal in Civil Appeal No. 03 14 of 2020 are self-

executing and have already been executed in accordance with the orders ofcourt and incapable of being stayed.

Decision of cou rt

[ 8] We have carefully perused tl.re sul'rrnissions of both parties.

Rule 6(2) (b) of the Rules of this court provides for the power of this court to grant orders for stay of execution and states [hat;

"2. Subject to sub-n e ( l), the it\*titution of an appeal shall not operate to suspend any sentence or sta', o/ a.ret'trtion but the courl may;

b) In any civil proceedings wlrcra a notice of appeal has been lodged in accordance with Rule 7 6 o./ these Rules, order a stay of execution... .....on suc'h teruts as the court may think just"

[ 9] Therefore, the above Rules of- this court empower this Court in Civil Procedure where a Notice of Appeal has been lodged per Rules 76 of the Rules of this court to grant a stay of execution on the terms it deems fit.

[20] It is also a settled principle that granting a stay of execution is discretionary and like alljudicial discretion, it nrust be exercised on well-established principles.

[21] The Supreme Court has in sevcral cases laid down the principles governing the exercise of this discretion. (See IIon. Theodore Ssekikubo & 3 ors V Attorney General & 4 ors CA no. 06 uf 20 l4) us hereunder;

- l. That the applicant must cstablish that his appeal has a high likclihood of success or a prima facic casc ol'his right to appeal. - 2. That the applicant will sufl'cr irrcparablc damages if the stay is not granted. - 3. That the balancc of convcnicncc is in lavor ol'the Applicant.

[22] Thc first condition thc applicant had 1o provc bclore this court is likelihood of succcss of' thc appeal. It is tritc that rvhcrc a party to a suit is exercising its unrcstrictcd right of appeal, it is thc duty ol'this coufl to make such orders that will prcvcnt thc appeal il successful lrom bcing nLrgatory.

l23l Instantly, Counsel lbr thc applicant sr.rbmittcd that thc appellant intends to argue that court relied heavily on additional cvidcnce lor thc first time on appeal to find in favour of thc Respondcnt without cvaluating it and that the court did not consider thc issue ol conflict o{'intcrcst o l' Con.rm issioncr lbr Land Registration adduced the additional evidcncc. Secondly that thc rcspondent did not win on all grounds ofappeal but was awardcd lull costs.

l24l On thc other hand, Counscl lbr thc l{cspondcnt opposed thesc arguments and statcd thal thc appeal is dcvoid ol'mcrit and raiscs no substantial grounds ol'appcal.

[25) Upon pcrusal ol'the Memorandum ol'appcal, this court notes that the court in the hearing of Civil Appcal No. 314 ol'2020 grantcd an application by the Respondent to adduce additional evidcncc and thc evidence was adduced by the Principal Rcgistrar oltitlcs upon which thc Applicant was allowed to cross cxamine thc witncss.

126) This court exceptionally allowcd thc Applicant to cross examine the witness through whom thc additional evidcncc was prcscntcd to court. 'lherefore, I find that the contention by Counsel lor thc applicant lhat thc cvidence was not evaluatcd is false and unsubstantiated since thc evidencc was propcrly put on court record and evaluated before the decision was rcndcrcd.

1271 Counsel lor the Applicant argucd furthcr that thc ILcspondent will tax its costs on the basis of the order yet thc samc is subjcct ol the appcal. I have perused the record and I find no proofthat thc rcspondcnt has already lilcd their bill ofcosts and evcn ilthcy did the orders sought intcnd 1tl slay thc canccllation of Mailo interests. It

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is my considered view that court cannot slay execution ol a decree merely because the applicant wishes to appeal on thc g.rant ol'costs.

[28] Considering the foregoing, this court determines that the draft memorandum of appeal does not raise any triablc issuc with a high likelihood of success and the applicant did not dcmonstratc horv l'irilurc to grant this application will render the appeal nugatory.

2. Thc second consideration bcfirrc granting thc application for stay is whether thc applicant will suffcr irrcparablc rlanragcs if thc stay is not grantcd.

l29l Both counsel submittcd that thc ordcrs of Court thc applicant intends to appeal are sclf-cxecuting.

[30] Counsel for the Applicant argucs thal thc Cornmissioncr Land Registration only requires to bc served with thc cxtractcd dccrec and hc will affect the cancellation of the title lbr llLrlcrnczi lllock l5 t'}lot 96 and 97 which will disposes thc applicant who will becomc liablc to iurnrcdiatc cviction.

[3 ^I] On the other hand, Counscl lirr thc llcspondcnt submittcd that the applicant is not in posscssion ol the suit propcrtv. rlid not dcmonstratc that hc is in posscssion cither and will suffer any substantial loss or irrcparablc damagc.

132) In consideration ol-thc abovc. I agrcc with Counsel for the Respondcnt.'Ihe Applicant has not dcmonstratcd which porl.ion ol'thc suit land he would seck a stay. Court orders cannot be uscd as a lishirrg cxpcdition. 'l'he applicant has not lurnished evidence of thc portion of land whosc ccrtilicatc ol'titlc has not bcen cancclled for coufi to considcr granting a stay ()\ cr.

t3 3l Applying the law to thc lacts bc lurc this court, I find that the Applicant is not under any threat of eviction lrom thc suit land as he does not demonstrate possession olany part ofthe suit property.

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[34] As to the third condition, thc rcspondcnt contcnded that the balance of convenience is in favour of thc Respondcnt sincc thel'possess the valid title.

[35] It was argued by the Respondent's counsel that this application has been overtaken by events since the cancellation and deactivation in execution of the decree has already been effected on l9'h September, 2024. This was conceded by counsel for the Applicant that the Decree ot' this court is self-executing and according to the evidence on couft record, thc ('ontrnissioner for Land Registration was served with the said decree and the cancellation of the mailo title(s) was effected as was admitted by counsel for the Applicant.

[36] lt was submitted lor the applicant that ri hereas the cancellations have been effected by the Commissioner for land registlation. the title(s) for the entire land had not been cancelled. However, we note that the Applicant has not assisted this court in adducing evidence of the portion ofthe land u,hose titles have not been cancelled.

L37) We find no dispute about the cancellation and deactivation of the Mailo Certificate of Title having been effected in execution of the decree of this court. Even if this court was to grant this application. it would still be constrained because the applicant has not demonstrated nor presented any evidence to show which portion ofthe land the stay would be effected upon.

[38] Accordingly, the balance of convenience lavours the Respondent who has the valid Certificate of Title. It is trite law that Court Orders cannot operate in ^a vacuultl

[39] The application to injunct the alienation of the Mailo interest is redundant as this court already ruled that there was no valid Mailo interest. The court cannot grant an injunction or stay an interest in land that it has already deemed not to exist in the first place. To do so would be to deterrnine appcal intended for the Supreme Court or reverse its own decision on the validity ol-the rnailo interest.


Orders

[40] The applicant has not satisfied the conditions for grant of stay of execution and the application is hereby dismissed with costs to the Respondent.

We so order.

delivered signed at Kampala this Dated, and .day of ...2025. $amuq$ $\overline{\mathcal{X}}$ Cheborion Barishaki JUSTICE OF APPEAL Christopher Gashirabake JUSTICE OF APPEAL . . . . . . Dr. Asa Muge JUSTICE OF APPEAL