[2025] UGSC 13

## THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA

[CORAM: CHIBITA; J. S. C.]

### CIVIL APPLICATION NO. 16 OF 2024

### **BETWEEN**

#### 1. JOHN LUKOMA 10

# 2. KAKULE KASAKYA EDWARD

**:::::::::::::::::::APPLICANTS**

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## **3. SARAH NALULE**

#### **AND**

#### THE REGISTERED TRUSTEES OF 15 THE SOCIETY OF THE MISSIONARIES :::::::::::::::::::::::::::::::::::: OF AFRICA (WHITE FATHERS)

(An application for an interim order of stay of execution.)

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# RULING OF MIKE J. CHIBITA, JSC

This Ruling relates to a Notice of Motion that was filed in this Court by the applicants for stay of execution. This application is anchored on Rule 2(2) and 41(2), 42 and 43 of the Judicature (Supreme Court Rules) Directions seeking for orders that:

a) An interim order doeth issue restraining the respondent, its agents, servants, employees, assignees, transferees, workmen, legal representatives or anyone claiming under it or under the judgment in Court of Appeal Civil Appeal No. 142 of 2018 from undertaking any developments or construction works of any kind, alienating, selling or transferring the suit property or in any way dealing with the property known as Mawokota Block

195 plot 3 and 4 pending the determination of Applicant's application for temporary injunction.

b) Costs of this application be provided for.

The grounds of the application are set out in the Notice of Motion and expounded in the affidavits in support of the application and in rejoinder, sworn by the 3^rd applicant, Sarah Nalule, which are stated as follows:

- a) The applicants are the lineal descendants of the late Lutiba Kyemwa of the Ngeye clan of Buganda Kingdom, the original owners of the suit land. - b) The respondent fraudulently mutated the suit land which was formerly block 195 plot 2 and created plots 3 and 4 of block 195. - c) In the year 1996, the late Dominico Kityo did a search and found out the land formerly situated at Block 195 plot 2 which was the ancestral land of all the people from the lineage of Lutiba Kyemwa of the Ngeye clan of Buganda Kingdom had been sub divided to create plots 3 and 4 and the same had been registered in the names of the Respondent and the late Karoli Lutwama from Kisumugungu ancestral lineage as the proprietors of the same. - d) The late Dominico Kityo immediately lodged a caveat vide Instrument NO. KLA/87064 forbidding the registration of any change in proprietorship of the suit land any dealings on the land of any nature. - e) In reaction to the caveat that was lodged by the late Dominico Kityo vide Instrument NO. KLA/87064, the late Karoli Lutwama filed civil suit No. 739 of 1997 in the High of Uganda at Kampala to remove the caveat. - f) The late Dominico Kityo filed a written statement of defense with a counter claim to cancel the certificates of title for the land

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situated at Mawokota Block 195 plot 3 and 4. However, upon the death of the original parties to the suit, the pleadings were amended and the parties were substituted to the current ones.

- g) Civil suit No. 739 of 1997 in the High of Uganda at Kampala was determined in the Applicants' favor which prompted the Respondent and the late Edward Mpoza Katuluba to file an appeal to the Court of Appeal. - h) The Court of Appeal determined the matter in the Respondent's favor and the Applicants filed Civil Appeal No. 0001 of 2023. The same is pending determination in this honorable court. - i) However, before the Applicants' Application for temporary injunction and the Civil Appeal are determined, the respondent and some other third parties who claim to have acquired their interest from the Respondent have started mining sand and constructing on the suit land. - j) The respondent and its agents are alienating the suit land before the appeal is determined. - k) The Applicants have filed an Application for temporary injunction and Civil Appeal No. 0001 of 2023 against the Respondent in this honorable court, which have a high probability of success. - l) It is necessary that the status quo between the parties be maintained pending determination of the Application for temporary injunction and the Civil Appeal. - m)If an interim order is not issued to restrain the Respondent or its agents, servants or employees or anyone claiming under it or under the judgment in Court of Appeal Civil Appeal No. I42 of 2018 from undertaking any developments or construction works of any kind, alienating, selling or transferring the suit property or in any way dealing with the suit land pending the determination of civil Application No. 15 of 2024, the Applicants

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shall suffer irreparable damage which cannot be atoned for by damages.

- n) The balance of convenience favors this Honorable Court's grant of an interim order to restrain the Respondents and their agents, servants and employees from developing and/or constructing on the suit land for purposes of preserving the status quo between the parties, pending civil Application No. 15 of 2024. - o) It is just and equitable that an interim order be issued by this Honorable Court in the terms prayed.

The respondent on the other hand opposed the application in an 15 affidavit in reply sworn on 11^th November, 2024 by Mr. Vincent Lubega, one of the respondent's trustees. The main contention was that the application lacked merit, was barred by law and that it was designed to delay justice which the respondent had pursued since 1997. The respondent averred that no steps had been taken to 20 alienate, mutate or destroy the suit land as alleged by the applicant.

## **Background**

The brief background to this application involves proprietorship of land situate at Mawokota Block 195 plot 3 and 4 where both parties claim ownership of the same. The applicants were the successful party at the High Court which ordered cancellation of the respondent's title as proprietors of the said land on grounds of fraud. Dissatisfied, the respondent successfully appealed to the Court of Appeal whereupon the judgment of the High Court was set aside. The applicants have now appealed to this Court against the decision of 30 the Court of Appeal vide Civil Appeal No.0001 of 2023 hence this application to stay execution.

# Representation

Mr. Kasalirwe Brian appeared for the applicants while the respondent was represented by Mr. Bwanika George William who held brief for 35 Mr. Semwanga Frederick. Parties filed written submissions.

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#### **Submissions** $\mathsf{S}$

## **Applicant's Submissions**

Counsel for the applicant submitted that the suit land which was the subject matter of the appeal was being altered by the respondent and third parties who claimed to have acquired interest from the respondent.

Counsel argued that the land was being cleared and demarcated, the trees on the land were cut down and there were construction activities as well as sand mining. He submitted that if the respondent or third parties who claim interest from it were not restrained, the land was likely to be taken possession of and sold to third parties and that the cultural cites of the Ngeye clan (applicants' lineage) on the suit land would be destroyed. This was a threat and would render the substantive application together with the appeal in this Court nugatory. Counsel therefore invited Court to grant the order sought and maintain the status quo pending the determination of the substantive application. He relied on Rule 2(2) of the Rules of this Court and the case of Hwang Sung Industries Limited V. Tajdin Hussein & 2 Ors No. 19 of 2008 to support his submissions.

## **Respondent's submissions**

Counsel for the respondent opposed the application. He also raised 25 preliminary points of law arguing that the application was incompetent, illegal and improper before this Court because the affidavit of the 3^rd applicant was filed without the written authority from the $1^{st}$ and $2^{nd}$ applicants as required by law. For this reason, counsel invited Court to strike out the said affidavit and dismiss the 30 application for lack of a supporting affidavit. Counsel relied on **Order** 1 rule 12(2) of the Civil Procedure Rules SI 71-1 (CPR) and Kaingana v Dabo Boubou [1986] and Lena Nakalema Binaisa & 3 others Versus Mucunguzi Myers Misc. Application No.0460 of **2013** to support this submission. 35

The second point of law submitted by counsel was that the application ought to have been filed in the Court of Appeal first and

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therefore the application was premature and devoid of merit. Counsel relied on Rule $41(1)$ of the Rules of this Court to support this submission.

Without prejudice to the above, counsel argued the merits of the application and submitted that there are no special circumstances to warrant the grant of an interim order in this case. Counsel argued that the respondent is not in occupation of the suit land and has not taken any steps towards executing the judgment and orders of the Court of Appeal and therefore have not alienated or destroyed anything thereon.

Counsel submitted that the allegations against the respondent were 15 speculative and unsubstantiated given that the evidence of pictures adduced by the applicant was unknown and strange to the respondent who are not in physical possession of the suit land. Furthermore, the pictures do not indicate any threat of alienation, destruction or recent developments undertaken by the respondent. 20

Counsel invited this court to dismiss this application.

## Rejoinder

Counsel in rejoinder strongly submitted that the application was competent. He argued that the written authority was in respect to appearances, pleadings or one person appearing on behalf of several 25 parties in a suit. He submitted that an affidavit was a form of evidence governed by the evidence Act and not a form of pleading which required authorization. He contended that basically affidavits possessed the role of giving evidence and not necessarily appearing, pleading or acting on behalf of another. He argued that the person 30 giving evidence is only required to have knowledge of the facts of the case.

Counsel submitted that under paragraph 1 of the 3^rd applicant's affidavit, the applicant averred that she swore the affidavit on her behalf and on behalf of the other applicants. He argued that the affidavit simply adduced evidence and facts which all the parties including the $3^rd$ applicant were well versed with.

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$\mathsf{S}$ Counsel submitted that the absence of authorization by a party should not be the basis to strike out the application since the 3^rd applicant is a party and conversant with the facts.

Without prejudice to the above, counsel argued that in the alternative, the absence of the written authority from the 1^st and 2^nd applicant should be treated as an irregularity. Counsel relied on Article 126 (2) (e) of the Constitution and the cases of **Bankone** Limited v Simbamanyo Estate Limited. HCMA No. 645 of 2020 and Namutebi Matilda v Ssemanda Simon & 2 Ors. HCMA No. 430 of **2021**to support this submission.

- Regarding the second objection that the application ought to have 15 been filed in the Court of Appeal first and therefore it was improper before this Court, counsel submitted that Rule 2(2) and Rule 6(2) of the Supreme Court Rules mandate this Court to entertain such applications. Counsel relied on several cases such as Theodore - Sekikubo & 4 Ors v Attorney General & 4 Ors. No. 4 of 2014 (SC), 20 Guiliano Garigio v Calaudio Casadio No. 5 of 2013(SC) 2021to support this submission.

Counsel invited Court to overrule the preliminary objections and decide the application on merit.

Regarding the merits of the application, counsel reiterated his earlier 25 submissions.

## CONSIDERATION OF COURT

I have carefully considered the application and the submissions of counsel.

Before delving into the merits of the application, let me first consider 30 the preliminary objections advanced by the respondent regarding the competence of the application.

Counsel for the respondent submitted that the application was incompetent because the affidavit of the 3^rd applicant lacked written authorization from the $1^{st}$ and $2^{nd}$ applicant on whose behalf she swore.

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- Counsel for the applicant on the other hand argued that the $\mathsf{S}$ application was competent and that what was more important was the knowledge of the facts of the case. He argued that the absence of authorization should not be the basis to strike out the application since the 3^rd applicant was well versed with the facts of the case. - The affidavit shows that in paragraph 1 of the 3^rd applicant's affidavit $10$ in support, she swore the affidavit on her behalf and on behalf of other applicants.

Courts indeed require parties to have proper authorization to act on behalf of others. A party in a proceeding cannot purport to act on behalf of another until and unless he or she is authorized to do so. The requirement of this authorization is intended to inhibit the danger of multiplicity of cases by parties in one cause of action.

However, lack of proof of authorization may not necessarily attract the sanction of striking out an application such as this one depending on the circumstances of a case. What it does in my view is to incapacitate the individual asserting to act on behalf of another from doing so.

Given that affidavits are sworn statements usually given for use as evidence, and that the person swearing must possess all the relevant facts and information that they attest to which in the rules of $25$ evidence would be admissible, failure to attach written authorization per se, as in the circumstance of this case would not in my view inherently invalidate the affidavit.

This is an irregularity which would not defeat this application since all the parties including the 3^rd applicant participated in the lower 30 courts and were knowledgeable of all the same facts. The evidence presented would not differ from what the $1^{st}$ and $2^{nd}$ applicants would have submitted in court, unless the circumstances and facts warranted distinct evidence which is not the case herein. Needless to say there is no evidence of objection from the other applicants. To 35 that extent and in the interest of justice, I will treat this defect as an

irregularity not to deter the substantive right of the applicant to be afforded a reasonable opportunity to be heard.

I note that rules of procedure are essential for justice. However, they $\mathsf{S}$ should not be overly raised to the point of becoming an obsession. Their purpose is to ensure a fair and orderly legal process to administer justice, not hinder it. Minor deviations or flaws that do not significantly harm the opposing party should not be used to invalidate or impede legal documents in question. $10$

This Court has had occasion to observe in **Besigve Kiiza v Museveni** Yoweri Kaguta and Another [2001] UGSC that:

"there is a general trend towards taking a liberal approach in dealing with defective affidavits. This is in line with the constitutional directive enacted in article 126 of the Constitution that the courts should administer substantive justice without undue regard to technicalities. Rules of procedure should be used as handmaidens of justice but not to defeat it."

In Bakaluba Peter Mukasa v Namboze Betty Bakireke (Election 20 **Petition Appeal 4 of 2009 (SC)** Court held that:

## "Rules of procedure are very important but they are not an end in themselves. They are often referred to as the hand maidens of justice, but are not justice themselves."

Furthermore, apart from arguing that there was no written $25$ authorization, there was no argument or demonstration by the respondent of malicious intent caused by the 3^rd applicant to suggest any prejudice or miscarriage of justice to this application.

For the foregoing reasons, I overrule this objection.

- Regarding, the second preliminary point, it is evident that the 30 applicant did not comply with Rule 41(1) of the Rules of this Court which confers concurrent jurisdiction over such applications that the applicant was enjoined to file the application in the Court of Appeal first. - However, Rule $41(2)$ empowers this Court in its discretion given the 35 circumstance of a case to handle applications for stay of execution to

safe guard the right of appeal even though they were not made in the Court of Appeal first.

I am inclined to exercise my discretion under Rule $41(2)$ of the Rules of this Court to determine the matter given that the litigation of this case, with two conflicting decisions on the proprietorship of the suit land has been protracted since 1997. Sending it back would prolong the litigation unnecessarily which would undermine the principle of finality.

Justice demands that litigation must come to an end and bring the matter to finality. Court is obligated to ensure that appeals are resolved in a just, fair, quick and cost effective manner as a principle of case management while also complying with the applicable rules. To that extent, in the interest of justice, I overrule this objection and proceed to determine the merits of the application.

- Turning to the merits of the case, the conditions for the grant of an interim order are settled in a plethora of decisions. There must be a 20 Notice of Appeal, a pending substantial application and evidence of a threat of execution before the hearing of the substantive application. See: Hwang Sung Industries Limited v Tajdin Hussein & Others, No.4 of 2014 - It is also trite principle that the grant of interim orders is to help the $25$ parties preserve the status quo and have the main issues between them determined by the full court. See: **Hezekiah Mukiibi & Anor v** The Commissioner Land Registration & Anor. No.39 of 2023(SC)

In the instant case, the first two criteria are not in dispute. The issue therefore is whether there is a threat of execution.

I find no demonstration of execution by the respondent that would yield a threat. The applicant has not adduced cogent evidence that the respondent has extracted the Court of Appeal decree and has commenced execution of the same.

That notwithstanding, the applicant averred that there were some 35 alterations on the land. She adduced evidence and stated that there were activities carried out on the suit land such as sand mining,

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- cutting down of trees, construction and land demarcations by the $\mathsf{S}$ respondent and/or persons who claimed interest under it hence the need to restrain them. She also averred that if stay was not granted, the emotionally attached cultural sites of the Ngeye clan on the land would be destroyed. - It is worth noting that sentiments or emotional attachments to 10 property per se are not a ground for stay of execution.

Nevertheless, the respondent on the other hand dissociated and distanced itself from the said activities on the land. It maintained that it was not in physical possession and that no steps were taken to develop or destroy the land.

Given that the primary objective of interim orders is to maintain the status quo, I am of the opinion that, in the interest of justice, a suitable order should be made to preserve the status quo by preventing interference and development of the land. Considering the circumstances of this case, especially since the respondent is not in physical possession, I am inclined to issue such an order pending the determination of the substantive application. Preservation of the suit property will cause no prejudice to either party.

In the result, I grant the order pending determination of the substantive application or until further orders of this Court. $25$

The Registrar is directed to cause list the substantive application at the next convenient session.

Costs shall be in the cause.

Dated at Kampala this 19 th<br>Dated at Kampala this 19 day of February 2025 30

MIKE J. CHIBITA JUSTICE OF THE SUPREME COURT

$11$ Kuling delivered by the Registrar this<br>20th day of February 2025

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