[2023] UGCA 343

#### THE REPUBLIC OF UGANDA

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

## **CIVIL APPLICATION NO. 110 OF 2023**

(Arising from Civil Application No.85 of 2021)

(Arising from Civil Appeal No.83 of 2021)

| 1. MIWANDA IGNATIUS | | |----------------------------------------------------------------|-------------| | 2. KIKABI PAUL | | | 3. KAZIRAKI EDWARD | | | 4. JORAM MUSOKE | | | 5. KAMASHANYU HARRIET | | | 6. CHRISTIAN FAMILY HELPERS LTD | | | 7. CHRISTIAN WOMEN CONCERN | | | 8. CHRISTIAN FAMILY HELPERS LTD T/A | . APPLICANTS | | ST. BARNABAS PRIMARY SCHOOL | | | 9. CHRISTIAN FAMILY HELPERS LTD T/A<br>MAAMA HELEN WAMALA FUND | | | 10. CHRISTIAN FAMILY HELPERS LTD T/A<br>MUYENGA HIGH SCHOOL | | | VERSUS | | | KALIILE HENRV LIICKV | |

$2.$ LWANGA CHARLES $[.................{\bf RESPONDENTS}$

LILIAN NANFUKA KAGIMU 3.

## RULING OF CHEBORION BARISHAKI, JA

#### **INTRODUCTION**

On the $22^{nd}$ March 2023, the applicants filed this application for stay of execution of the orders of this court in Civil Application No. 85 of 2021 Miwanda Ignatius & Others Vs Kalule Henry & Others pending the final determination of the applicant's appeal in the Supreme Court. The applicants also prayed that the costs abide the outcome of the appeal.

#### **BACKGROUND**

The background of this matter as gathered from the Affidavits filed appears not to be in contention.

The $1^{st}$ to the $5^{th}$ applicants are stated to be spiritual children and close business associates of the late Pastor Hellen Darlia Nanfuka Wamala (deceased) who died on the 8^th July 2016. The businesses left behind by the deceased included the $6^{th}$ , $7^{th}$ , $8^th$ and $10^th$ applicants.

The $1^{st}$ and $2^{nd}$ respondents are stated to be biological brothers of the deceased while the $3^rd$ respondent is said to be a niece and the customary heir of the deceased.

During her life, the deceased had begotten one biological child, Vivienne Pearl Wamala. In her Will, the deceased bequeathed all her estate to her biological daughter. Unfortunately, the daughter predeceased her. Even the deceased's husband, Reverend Vicent Wamala Atwoki, died long before the deceased in 1998.

Following the death of the deceased, the executors of the deceased's Will who included the 1^st applicant petitioned the High Court for grant of Probate. A caveat against the grant was lodged by the respondents. Thereafter, the respondents instituted High Court Civil Suit No. 573 of 2016 against the applicants seeking, inter alia, the nullification of the Will and several declarations the substance of which was to establish their interest in the estate of the deceased.

In his judgment, which was rendered on 22^nd October 2020 after hearing all the parties, Hon. Justice David Matovu of the Family Division, found that the deceased indeed left a valid Will but that the same cannot be operationalized because the sole beneficiary to the said Will, Vivienne Pearl Wamala, predeceased the testator. He ordered that the estate be handled as that of an intestate.

He further directed the Office of the Administrator General to convene a family meeting of the close relatives of the deceased, including all the parties to the suit, for purposes of gathering all the properties that belong to the estate of the deceased and come up with a list of all the legitimate beneficiaries to the estate and thereafter nominate persons fit and proper to administer the estate.

The applicants were dissatisfied with part of the decision of the High Court and filed Civil Appeal No. 83 of 2021 before this court. The respondents filed Civil Application No. 319 of 2020 seeking to strike out the appeal. On their part, the applicants filed Civil Application No. 85 of 2021 seeking to validate the appeal or, in the alternative, leave of the court to extend time within which to file and serve the appeal. In between, the applicants were granted orders of stay of execution pending the disposal of the appeal by this court. Furthermore, in between, the High Court granted the respondents the Letters of Administration to the deceased's estate.

On 21^st February 2023, a panel of three Justices of this court dismissed the applicants' application for extension of time, struck out the Notice of Appeal and

ordered that civil application No. 319 of 2O2O by the respondents to strike out the applicants' Notice of Appeal is resolved within the same Ruling of the Court.

Aggrieved by the above decision of the court, the applicants filed their Notice of Appeal to the Supreme Court. They also filed the instant application.

## Representation.

When this matter came up for hearing before me on the 19ft July 2023 the Company Secretary of the 6ft applicant appeared for the 6ft applicants. Mr. Francis T\rmwesi5/e represented the respondents. The parties having not liled their all their written submissions as directed by the Registrar of this Court were granted leave to file additional affidavits and submissions which they have since done.

One point of law which arose out of the submissions was jurisdiction of a single Justice of appeal to entertain the instant application. I will first resolve that question and if answered in the negative, I will then proceed to consider the merits of the application.

# Jurisdiction.

I have read the submissions of both parties for which I am gratefull.

Jurisdiction is a creature of statute. The jurisdiction of a single justice of this court to hear an application is derived from Section 12 of the Judicature Act, Cap. 13 which confers a single Justice of this Court jurisdiction to hear and determine all interlocutory applications filed in the court with a dissatisfied party having a right to make a reference to a full panel of the court from that decision. The section reads:

# "5.12 Powers of a single justice of the Court of Appeal

- tt A single justice of the Court of Appeal maA exercise ang pouer uested in the Court of Appeal in any interlocutory cause or matter before the Court of Appeal. - et Any person dissa/isf ed uith the decision of a single justice of the Court of Appeal in the exercise of ang power under subsection (1) shall be entitled to haue the matter determined bg a bench of three justices of the Court of Appeal uhich may confirrn, uary or reuerse the decision.

The wording of the section is clear. For a single Justice of this court to have jurisdiction, it must be shown that the subject matter in the application is an interlocutory matter. See: Jomayi Property Consultants Ltd. Vs. Andrew Maviiri; Civil Reference No. L74 of 2015 (Arising from Civil Application No. 2OO of 201sl

The instant matter is not interlocutory as there is no appeal pending resolution before this court following the orders of the court in Civil Application No. 83 of 2O2l made on 21"1 February 2023. As such, it is only a panel of three Justices of this court which has jurisdiction to handle it.

Accordingly, I direct the Registrar of the court to place this matter before a panel of three Justices for disposal on its merits at the earliest convenient session.

I note from the Affidavit evidence of the l"t applicant that the Notice of eviction issued by the Deputy Registrar of the High Court, Family Division, on the 24th of May 2023 requiring the applicants to vacate the schools known as St. Barnabas Primary School, Muyenga High School and lands comprised in Kyadondo Block 244 Plots 4648,4729,4730,4732 and 5074 at Kisugu expires on-the 24n of August 2023. As such, the question that arises is whether I should let the parties stay without any interim remedy as this court figures out how and when to timetable their application before the appropriate panel of Justices of this court.

I think not. The interest of justice in the circumstances of this case, requires that the threatened execution be stayed until the grievances of the parties in this application are addressed by the panel of the three Justices of the court on the merits.

The applicants liled their application diligently. The same was improperly cause listed before me for hearing as a single Justice by the Registrar of this court. In the meantime, the period of the eviction came very close. The applicants are not responsible for the actions of the Registrar. In the same vein, the applicants have no control over the timetabling of their application before the panel of three justices. Their application risks being rendered nugatory if the threatened execution is not temporarily halted.

Further, the dispute involves families, the estate of a deceased person, and business properties on which several persons'livelihood appears to be anchored. For those reasons it is important that opportunity is availed to the litigants to establish their claims and counterclaims before the competent court and have a resolution of the same on the merit.

Above all, the properties which are the subject matter of the threatened eviction include two schools, namely : St. Barnabas Primary School, and Muyenga High School. The eviction from the schools impacts on the study programs of innocent learners. The challenge likely to be created for the parents of the school going children in finding alternative schools which offer the same syllabus and subjects if the eviction takes place when academic year is midway is obviously grave.

For the reasons given above, i order as follows:

- 1) The Registrar of this court is hereby directed to place this matter for disposal on its merits by a panel of three Justices of this court at the earliest convenient session. - 2) In the meantime, the execution against the applicants by the respondent is stayed pending the hearing of this application by the Panel of three Justices of this court or until further or other orders of the court.

# It is so ordered.

Dated at Kampala this .?i{3 day of.. fk'\$rl'e. .2023.

t. Cheborion Barishaki

Justice of the Court of Appeal