[2024] UGCA 92

#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### **CIVIL APPLICATION NO. 1166 OF 2023**

STEVEN MAGERO ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

| 1. JULIE ODAKA MUNDAWAWARA | |--------------------------------------------------------------------| | (Administrator of the Estate of the late | | Sam Odaka) | | 2. DENNIS OUNA | | (Administrator of the Estate | | of the late Gabriel Owino) | | 3. MOHAMMAD WANDERA | | (Administrator of the Estate | | of the late Gabriel Owino) | | 4. JOLLY WERE | | (Administrator of the Estate | | of the late Francis Xavier Were) ::::::::::::::::::::: RESPONDENTS | | 5. HAROLD WEJULI | | (Administrator of the Estate | | of the late Alex George Wejuli) | | 6. TEOPISTA AGUTU | | (Representative & Beneficiary of the Estate | | of the late Romano Masiga) | | 7. John Rick OSWALA | | (Representative & Beneficiary of the Estate | | of the late Romano Masiga) | | 8. SAMACO INTERNATIONAL LIMITED |

9. BUMERO ESTATES LIMITED

**10. UGANDA REGISTRATION SERVICES BUREAU**

**ATTORNEY GENERAL** 11.

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

*(Sitting as a single Justice)*

## **RULING OF COURT**

This application was brought under Section 33 of the Judicature Act and Rule 6 (2) of the Judicature (Court of Appeal Rules) Directions S. I 13-10 seeking for orders that;

Page 1 of 10

- a) A temporary injunction do issue restraining the Respondent from making payments granted in Supreme Court Civil Appeal No. 13 of 2OO7 to the l"t to 9th Respondents till the disposal of the intended Appeal. - b) Costs of the Application be provided for.

The grounds upon which this application is premised are stated in the Notice of Motion and the afhdavit in support deponed by the Applicant, Steven Magero, sworn on l"t November 2023 and arc briefly that;

- 7. On 27th April 2004, the 9'h Respondent was incorporated with the original shareholders being Romano E. Masiga, Alex Wejuli and Gabriel Lawrence Owino. - 2. The Applicant, together with Denis Ouna were appointed administrators of the estate of the late Gabriel Lawrence Owino vide Administration Cause No. 1669 of 2016. - 3. By virtue of a settlement in Supreme Court Civil Appeal No. 13 of 2OO7, the 9th Respondent was to be paid Shs. 23,l28,OOO,OO0/= by the Attorney Genera-l and certain paJrments were made leaving a balance of Shs. 20,128,OOO,000/=. - 4. Owing to the disagreements regarding the shareholding of the 9ft Respondent, Company Cause No. 2 of 2O2L was filed by the 1st to 8th Respondents against the 9th and 10th Respondents and court ordered that the administrators of the Estates of the

Page 2 of 10

dI

original shareholders be entered as shareholders in the company register under Article 31 of the Articles of Association.

- 5. Court ordered, among others, that the registered shareholders attend a special meeting not later than 45 days from the date of the order to approve the minutes and resolutions of the meeting held on 5th July 20 17. - 6. On 21"t September 2022, 'the 2nd, 3.d, 5th, 6th and 7th Respondents purported to hold a meeting of shareholders of Bumero Estates Limited and restrained the Applicant from attending the said meeting. - 7. The Applicant was aggrieved by the meeting and filed Miscellaneous Application No. 214 of 2023 which was dismissed by the High Court on 206 October 2023. - 8. The Applicant has got information that the 1lth Respondent is in the process of making paJ,,rnents to the 1"t to 9th Respondents hence this application for a terflpora-ry injunction. - 9. The Applicant will suffer irreparable loss if this application is not granted.

The 3.a Respondent filed an a-ffidavit in reply deponed on the 18th of March 2024 opposing the application and stating briefly that;

- 1. The 2nd.,4th,Sth,6th and 7th Respondents are also Directors in the 9th Respondent company. - 2. In 2016, it transpired that the company records at the Registry of companies were missing giving rise to company cause No. 38

Page 3 of 10

of 2016 and Misc. Application No. 203 of 2OI7 seeking to reconstitute the company.

- 3. The High Court made orders directing the reconstitution of the company which culminated into the Registrat of companies convening a meeting on Sth July 2017. - 4. At the meeting, paSrments for shares that had been made by all persons were recognised and it was unanimously resolved to appoint a Board of Directors and to a-llot shares that had by August 1986 been paid for by various persons. - 5. These resolutions were never extracted and frled with the Registrar of Companies which made impossible for the 3.d Respondents and other shareholders to follow company business in the 9th Respondent. - 6. The Respondents commenced Company Cause No. 03 of 2O2l and court directed several steps to be taken in order to regularize the records of the company. - 7. The Applicant commenced Misc. Application No, O2l4 of 2023 which application was dismissed for lack of merit. - 8. The Applicant hled a Notice of Appeal and the current application without seeking leave to appeal the ruling in High Court Misc. Application No. 0214 of 2023. - 9. The Applicant's application ought to have been lited in the High Court first and there a-re no exceptional circumstances that warrant the filing of this application in the Court of Appeal.

Page 4 of 10

## Representation

At the hearing of this Application, Ms. Amanya Viola appeared for the Applicant, holding brief for Mr. Peter Wa-tubiri. The lst to 9th Respondents were represented by Mr. Martin Mbaza Karemera, holding brief for Mr. Enock Barata, while Mr. Moses Sempijja appeared for the 10th Respondenti holding brief for Ms. Cynthia Mpoza.

## Consideration of the Application

I have carefully considered the law applicable to this application and the authorities cited to court together with the affidavit evidence on record.

For a temporary injunction to be granted, court is guided by certain 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;

'The applicant must shotu a prima facie case with a probabilitg orf success. An injunction will not normallg be granted unless the applicant might othenuise suffer ireparable injury, which could not be compensated in damages. When the court is in doubt it will decide the application on the balance of conuenience."

Thus, the granting of a temporaqr injunction is an exercise of judicial discretion and the purpose of granting it is to preserve the matters in the status quo until the question td be investigated in the main suit

Page 5 of 10

is finally disposed of. The conditions for the grant of a temporary injunction are;

- 1. Firstly, that, the applicant must show a prima facie case with a probability of success. - 2. Secondly, such injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. - 3. Thirdly if the Court is in doubt, it would decide an application on the ba-lance of convenience.

An order for a Temporary Injunction is granted so as to prevent the ends of justice from being defeated.

# l. Prtma facie case with likelihood of success

The Supreme Court in the case of Gashumba Maniraguha vs Sam Nkudiye Ctvil Application No. 24 oI2015, held that the likelihood of success is the most important consideration in an application for stay of execution. Therefore, it is incumbent upon the Applicant to avail evidence, or material to the court in order for it to establish whether or not the Applicant has a prima facie case on appeal.

The grounds as stated in the Applicant's affidavit in support of the application do not contain any statement therein averring that the Applicant's appeal has a likelihood of success. The Applicant simply narrates the events that led to the f,rtingof Misc. Application No.214 of 2023. Failure by the Applicant to demonstrate that his a appeal has a likelihood of success was a sefious omission.

Page 5 of 10

CY

Secondly, the Respondent raised an issue of validity of the Applicant's appeal in paragraphs 18-20 of the 3.d Respondent's affidavit in reply in which he stated that the Applicant has no right of appeal to this court against the decision in Misc. Application No. O2I4 of 2023.

:

Miscellaneous Application No. 0274 of 2023 was hled under Section 64 (c) and (e) of the Civil Procedure Act seeking for orders that the resolutions of the 9th Respondent passed at the meeting convened on 21"t September 2022 be cancelled, an injunction restraining the 1 1th Respondent from paying the monies in respect of Supreme Court Civil Appea-l No. 13 of 2OO7 and an injunction restraining the 9th Respondent from disbursing any. funds received from the l1th Respondent.

An order under Section 64 (c) and (e) of the Civil Procedure Act is not appealable as of right. Section 76 ('1) of the Civil Procedure Act lays down the orders from which an appeal lies. It provides as follows;

# ^u76. Orders from uthlch appeal lles

(1) An appeal shall lle from the follourlng orders, ond except as otherutise expresslg proulded tn thls Act or bg ang laut tor the tlme being ln force from no other orders-

(a) an order supersedlng an arbltratlon where the auard hos not been completed wlthln the perlod allouted bg the couttl

(b) an order on an duard stated ln the fonn of a speclal case;

(c) an order modtfuing or correcting an oward;

Page 7 of 10

df

(d) an order staglng or refuslng to stag a sult where there ls an agreement to reJer to arblttotlon;

(e) an ord.er filtng or refwslng to flle an qutard ln an arbltratlon utlthout thc lntententlon of the court;

(f) an order under sectlon 65;

(g) qn order under thls Act lmposlng a fine or dlrectlng thc q,rrest or detentlon ln pilson of ong person, except uth.ere tle atrest or detentlon is in executlon ofa decree;

## (h) ang order made under ntles from uthtch an appeal ls expresslg allouted bg ntles ^u

It is therefore quite clear that an order made under Section 64 (c) and (e) of the Civil Procedure Act is not amongst those which an appeal can lie. Thus, the Applicant's appea-l from the decision in Miscellaneous Application No. 214 of 2023 would require the leave of court. From the affrdavit evidence on record, there is no evidence that an application for leave has been made either to the High Court or to this Court for that matter as is required by rule 40 of Court of Appeal Rules.

In the absence of such an application, this court cannot find a prima facie case where the appeal itself is invalid.

## 2. Irreparable damage

The second consideration is whether the Applicant will suffer lrreporable d.amage or thot the appeal utlll be rendered nugatory tf a stog is not gra.nted..

Page 8 of 10

The Applicant's counsel referred to paragraph 13 of the Applicant's affidavit in support of the application and argued ttrat the disagreement over the shareholding of the 9th Respondent revolves around the management of a large sum of money to be paid by the 1lth Respondent. He argued that if this money is paid to the wrong persons, the company and its shareholders will suffer irreparable loss.

Irreparable damage was defined in Black's Law Dictionary, 9th Edition at page 447 lo mean; "damages that cannot be easily ascertained because there is no fu.d peanniary standard measltrement"

In my understanding, the applicant has to show that the damage bound to be suffered is such that it c.annot be undone. No amount of monetary recompense can restore the injured pa-rty to the position he or she was before the damage was visited on the individua-l.

In the instant case, the Applicant has not demonstrated the injury he is are likely to suffer if this application is not granted. The Applicant stated that he is a holder of Letters of Administration of the estate of the Late Gabriel Owino, together with Dennis Ouna the 2"d Respondent. The Applicant is also a Director of the 9th Respondent, the same company to which the monies are to be paid. I do not find any irreparable damage bound to be suffered by the Applicant in this case, if the said monies are paid to the Company in which he is a director and shareholder before the determination of the appeal. I

Page 9 of 10

therefore hnd that the element of irreparable damage has not been proved by the Applicant.

With regard to balance of convenience, I reiterate that this court is only duty bound to consider such an application on the balance of convenience where it is in doubt on the first two considerations. Having found as I have that the Applicant has no prima facie case and that he will not suffer irreparable damage, I find no reason to delve into the ba-lance of convenience.

Before I take leave of this matter, I must note that from the evidence on record, the order of payment to be made to the Respondents was given by the Supreme Court in S. C. C. A No. 13 of 2OO7. The orders sought by the Applicant in the instant application, would arnount to halting the order of the Supreme Court. In the context of the facts pertaining to this application, this would be untenable.

This application is accordingly dismissed. Costs shall abide the outcome of the appeal.

I so order Dated this t day of ...... 2024

V OSCAR o HII(A JUSTICE F

Page 10 of 10