[2024] UGCommC 239

# 5 **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA**

### **[COMMERCIAL DIVISION]**

# **MISCELLANEOUS APPLICATION NO. 1775 OF 2022**

# **(ARISING FROM MISCELLANEOUS APPLICATION NO. 1694 OF 2022)**

10 **(ARISING FROM COURT OF APPEAL CIVIL APPLICATION NO. 841 OF 2022)**

**(ARISING FROM CIVIL APPEAL NO. 1574 OF 2021)**

**(ARISING FROM EMA NO. 283 OF 2021)**

**(ARISING OUT OF CIVIL SUIT NO. 969 OF 2018)**

**GEOFFREY NANGUMYA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

15 **VERSUS**

- **1. GULF STREAM INVESTMENT (U) LTD** - **2. DIAMOND TRUST BANK LTD** - **3. KARUIKI MAINA** - **4. KENNETH KITARIKO** - 20 **5. MBABAZI K. EMEJIET**

**6. M/s MUGANWA, NANTEZA & CO. ADVOCATES ::::::::::::::::::::: RESPONDENTS Before Hon. Lady Justice Harriet Grace Magala**

#### **Ruling**

#### **Background**

25 This is an application for leave to appeal to the Court of Appeal against the decision of this honorable court in Miscellaneous Application No. 1694 of 2022. The

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- 5 application is supported by the affidavit sworn by the Applicant. The grounds of the Application are that: - a) On the 28th November 2022, the Applicant filed HCMA No. 1673 of 2022 against the Respondents seeking to review and set aside the Order of the High Court in EMA No. 283 of 2022; - b) On the 10th 10 December 2022 this Honorable Court made a decision to dismiss HCMA No. 1673 of 2022 for being overtaken by events without giving the Applicant an opportunity to be heard; - c) That Applicant is dissatisfied and aggrieved by the decision of this honorable court for dismissing HCMA 1673 of 2022 and intends to appeal 15 against the same in the Court of Appeal; - d) The Applicant cannot appeal against the Orders of the Learned Trial Judge in HCMA 1673 of 2022 as of right; - e) The Applicant requires leave of this Honorable Court to be able to appeal to the Court of Appeal; and - 20 f) It is in the interest of justice that the Applicant be granted leave to appeal.

The background to this application stems from *HCCS 0969/2018: Geoffrey Nangumya – vs – Gulf Stream Investment (U) Limited & 6 Others*. This matter was settled when the Parties signed a Consent Judgement on 23rd September 2020. The Consent briefly stated that the Plaintiff would pay Ugx. 500,000,000/= on

25 31/10/2020, the balance of Ugx. 460,000,000/= within six (6) months from 31/10/2020 and in the event that the Plaintiff defaulted on the payment terms, the Respondents had the right to execute for recovery of the outstanding sums due. When the Applicant/Plaintiff defaulted on payments, the mode opted for by

5 the Defendants/Respondents to recover the money was eviction of the Plaintiff/Applicant. This was objected to in a letter dated 24/11/2022 and addressed to the Deputy Registrar by the Applicant through his legal counsel.

On 4th May 2021, the Respondents filed an Application for Execution of the Decree/Order by way of eviction with Court and the same was received by court on

20th May 2021. By way of a letter dated 17th February 2022, the 6th 10 Respondent informed Court that they had instructed Mugabe Robert t/a Property and Assets Recovery Trust to carry out the eviction as per the Court Order and therefore invited court to re-issue the Warrant of Eviction.

On 23rd March 2022, Mr. Mugabe formerly informed the Applicant of the pending 15 eviction within 90 days. The Applicant received the letter on the same day. On 31st May, 2022, the 6th Respondent informed Court that an eviction Notice had been served on the Applicant and prayed that a warrant of eviction be issued to Mr. Mugabe. The Eviction Order was issued by Court on 6th June 2022.

In a letter dated 24th November 2022 the Applicant through his legal counsel applied to court to review the warrant issued under EMA 0283/2021. On 24th 20 November 2022 by way of a letter to court, the 6th Respondent applied to have the Warrant re-issued. On 5th December 2022, the Applicant obtained an Interim Administrative Order to stay the execution of the Warrant issued under EMA 0283/2021. The same was issued. Court found that this Order was erroneously

25 issued by the Ag. Deputy Registrar. Since the Applicant had already filed HCMA 1673 of 2022 and the same had been allocated to me for hearing, the Interim Administrative Order should have been obtained from me. The Ag. Deputy Registrar moved herself upon realizing the mistake and vacated the Order on

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5 07/12/2022. The eviction was carried out and a return made and filed in Court by Mr. Mugabe on 07/12/2022.

Between the time the Main suit was filed and when HCMA 1673 of 2022 was heard, the Applicant had filed six (6) application most of which were dismissed, one was withdrawn by the Applicant and in some instances the prayers sought for

10 by the Applicant were granted.

The affidavit in reply was sworn by Mbabazi K. Emejeit wherein he stated that the Applicant was to pay the decretal sum in installments within six months. The Applicant indicated to the Respondents that the sums were available at the time of execution of the consent judgment but defaulted on payment of the installments.

15 This prompted the Respondents to commence execution proceedings and seek leave to evict him from the property. During the hearing of the proceedings to show cause why the eviction order should not be granted, the court severally granted adjournments to enable the applicant meet his obligations under the consent to no avail. The Registrar was still constrained to grant leave to evict the Applicant to 20 which notices to vacate were issued before a warrant of eviction was issued. That by the time the consent was entered into, the property comprised in LRV 3323 Folio 2 Plot 47 Martin Road, Old Kampala had long been sold and transferred to the 1st Respondent.

That the Applicant filed Civil Appeal No. 1574 of 2021 arguing that the Registrar 25 erred when she failed to grant him an extension of time within which to pay. This appeal was dismissed on the 22nd day of April, 2022 by Hon. Justice Stephen Mubiru. That the Registrar did not err in making the eviction orders, the Applicant only appealed to this court seeking an extension of time and did not raise any

5 grounds as regards the orders of eviction. The act of execution and eviction of the Applicant rendered the application before court seeking to review the orders granted by the Registrar redundant and in the circumstances, there was no need to hear Misc. Application No. 1673 of 2022. That given the facts presented to court during the hearing of Misc. Application No. 1694 of 2022, the return of execution filed in court on the 7th 10 day of December 2022, the eviction orders had been carried out and an application to review the same would have been moot. That the appeal had no likelihood of success and raised no grounds that merit consideration on appeal. That the execution and eviction proceedings were upheld by the Court of Appeal in Civil Application No. 841 of 2022 in its ruling delivered on the 15th 15 September 2023.

In an affidavit in rejoinder, the Applicant stated that EMA No. 283 of 2021 was in variance with the terms of consent judgment HCCS No. 969 of 2018. That the Applicant was not given an opportunity to be heard in Misc. Application No. 1673 of 2022 as to whether the orders of the Deputy Registrar varied the terms of 20 consent judgment in HCCS No. 969 of 2018 and as such whether the orders were validly made. That Civil Appeal No. 1574 of 2021 related to the Learned Registrar's refusal to grant more time within to pay the amounts in the decretal sum, thus has no bearing on this instant Application. The intended Appeal relates to the Learned Trial Judge's dismissal of Misc. Application No. 1673 of 2022,

25 basing on the false return of the execution and without hearing the parties. That it is in the interest of justice that this Application for leave to appeal against the decision is granted.

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#### $\mathsf{S}$ **Representation and appearance**

The Applicant was represented by M/s Tuhimbise & Co. Advocates while the Respondents were represented by M/s Muganwa, Nanteza & Co. Advocates. Both parties filed written submissions that have been duly considered by this court.

### **Issues for determination**

- 1. Whether the Applicant should be granted leave to appeal against the 10 Court's decision in HCMA No. 1673 of 2022 - 2. What remedies are available to the parties?

#### Determination

$15$

# Issue 1: Whether the Applicant should be granted leave to appeal against the Court's decision in HCMA No. 1673 of 2022

It was the Applicant's submission that he filed HCMA No. 1673 of 2022 seeking a review and setting aside of the orders of the Learned Registrar in EMA No. 283 of 2021 in as far as it varied the terms of the consent judgment. However, the application was dismissed without the parties being given an opportunity to be heard. A careful reading of the decision in Misc. Application No. 1673 of 2022, this $20$ court clearly laid down the lengthy background to this Application in as far as how the Applicant has been in court filing various applications to the extent now that he was sounding like a broken record. According to the Consent Judgment executed on the 23^rd September 2020, the Plaintiff /Applicant was to pay Ugx. 500,000,000/= on $31^{st}$ October 2020 and the balance of Ugx. 460,000,000/= was to be paid within $25$ a period of six months from 31^st October 2020 (that is by the end of April 2021).

Purlagere<br>Page 6 of 9

- 5 The Applicant relied on the case of *G. M. Combined (U) Ltd vs. A. K. Detergents (U) Ltd SCCA No. 23 of 1994* cited in *Degeya Trading Stores (U) Ltd vs. Uganda Revenue Authority CACA No. 16 of 1996*, where it was held that an Applicant seeking leave to appeal must show either that his intended appeal has a reasonable chance of success or that he has arguable grounds of appeal. - 10 To this end, the Applicant submitted that the right to be heard enshrined under **Article 28 of the Constitution of Uganda**, vests power in any person, body or tribunal to hear both sides of the case before making a decision on the matter. Subsequently, that this court should grant leave to appeal for both parties to have an opportunity to present their cases. He relied on the case of Java *Coffee & Tea* - 15 *Ltd vs. Uganda Registration Services Bureau & Ors Company Cause No. 16 of 2014.*

In the case of *Sango Bay Estate vs. Dresdner Bank & Attorney General E. A [1971] EA 17 at page 20*, **SPRY, V.-P** stated that:

*"As I understand it, leave to appeal from an order in civil proceedings will* 20 *normally be granted where prima facie it appears that there are grounds of appeal which merit serious judicial consideration but where, as in the present case, the order from which it is sought to appeal was made in the exercise of a judicial discretion, a rather stronger case will have to be made out."(emphasis is mine).*

The Applicant filed Misc. Application No. 1673 of 2022 on 29th 25 November 2022 seeking for a review of the Deputy Registrar decision and to set aside the same. He then filed Misc. Application No. 1694 of 2022 on 1st December 2022 seeking for an interim order of stay of execution. According to paragraphs 4.11 and 4.12 on pages

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5 6 of 7 of the ruling in MA No. 1694 of 2022, the court stated the Applicant was given ample time to make good his debt, while he expressed his willingness to deposit money in court, however, to no avail. The Respondents unequivocally stated that they were no longer interested in the Applicant's money. The Respondents informed Court that the eviction had been carried out and a return was on the 10 Court file. The Respondents are in possession of the suit property and ownership has since changed to the 1st Respondent. To this end, the court's decision was premised on the fact that the Applicant failed to pay his debt, the Respondents sold the suit property, an order of eviction was issued and a return was filed in court. Subsequently, the Applicant having failed to redeem his property, there was no 15 need to review the Learned Registrar's order to evict the Applicant because he was not the current registered proprietor. In my opinion, this court judiciously exercised its discretion in finding that HCMA No. 1673 of 2022 was overtaken by events.

According to the Affidavit in reply, the Applicant was on two occasions served with **Annexure "A"** to show cause why an order of eviction from the suit property should 20 not be issued. On both occasions he failed to make good on his promises to pay. It was for that reason that the Learned Registrar issued the order of eviction. In Misc. Application No. 1673 of 2022, the Applicant believed that the Learned Registrar's orders were at variance with the terms of the consent judgment. However, the Applicant had at that point failed to honor the terms of the Consent Judgment. The 1 st 25 Respondent is now the registered proprietor.

I have also had the benefit of perusing *Civil Application No. 841 of 2022,* that was filed in the Court of Appeal immediately HCMA No. 1673 of 2022 was dismissed. The Hon. Lady Justice Eva K. Luswata's decision corresponded with this court's

- 5 decision in HCMA No. 1694 of 2022 which the Applicant seeks to leave to appeal. She found that 1st Respondent is the legal owner of the property and in active possession, with the absence of a contest against the foreclosure proceedings, the Applicant's failure to pay the debt and redeem the property, the Applicant was ordered not to compromise the 1st Respondent's possession. - 10 Given the finding of the Court of Appeal in Civil Appeal No. 841 of 2022, I find that the Applicant has not raised any serious issues for judicial consideration. This application is an abuse of the court process and is hereby dismissed.

# **Issue 2: What remedies are available to the Parties?**

15 Costs

It is a general rule that costs shall follow the event unless the court or judge shall for good reason otherwise order (see **Section 27 (1) of the CPA** )

Having found for the Respondents, the costs of this application are awarded to the Respondent.

**Signed and dated at Kampala this 12th** 20 **day of August 2024.**

**Harriet Grace MAGALA**

**Judge**

**Delivered online (ECCMIS) this 13th** 25 **day of August 2024.**