[2022] UGCA 261

### ⁵ THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CIVIL APPLICATION NO.648 OF 2022

(Arising out of Ciuil Application No.676 of 2022)

(Aising from Ciuil Application No.325 of 2017)

(Arising out of Ciuil Suit No.69 of 2012)

SENYONJO DICK:::::::::::::::::::::::::::::::::::r:::::::::::::::::::::::::APPLICANT

#### VERSUS

# DELTA PETROLEUM (UGANDAI LTD: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :RESPONDENT CORAM: HON. MR. JUSTICE CHEBORION BARISHAKI, JA

(Single Justicef

#### RULING

#### INTRODUCTION

This is an application for interim order of injunction restraining the respondent and/ or her agents, assignees, employees and/or any other person directly dealing with or acting under the respondent's authority from evicting the applicant, carrying out construction work, deploying security guards, alienating or disposing off the suit property by way of sale, mortgaging and creating other 3rd party interests on the suit property, wasting the suit land, selling, subdivision and or in any other way interfering with the suit

⁵ land to alter the current status quo of the land until the final disposal of the main suit.

The application is brought by way of Notice of Motion under Rule 612l (bl.,2 (1) and 43 (1) & (2) of the Judicature (Court of Appeal Rules) Directions S.l 13 - 10.

The background to the application is that the respondent sued the applicant in the High Court at Jinja vide Civil Suit No.69 of 2012 seeking inter alia a declaration that the respondent was the lawful owner of the land comprised of LRV 1456 Folio 8, Plot 81 block 530 Mukono measuring 0'046 hectares, a declaration that Nsubuga Robert was a duly authorized agent ofthe defendant under a valid and lawful power of attorney with powers to sell and transfer land, a permanent injunction, orders for specific performance and costs of the suit. Judgment was delivered in favour of the respondent' 10 15

Dissatisfied with the judgment of the High Court, the applicant lodged Civil Appeal No.20 of 2017 but the same was filed out of time. The applicant then sought leave of this Court vide Civil Application No.325 of 2OL7 for extension of time within which to file an appeal which has not been fixed for hearing to date. In the meantime, the respondent extracted a decree and has since used it to cause the transfer of the land title of the suit property from the names of the applicant into the names of Delta Petroleum (U) Limited. The applicant averred that the respondent had been frequenting the Suitland with the view of buying it. That the respondent has previously used several people with threats of evicting the applicant. 25

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⁵ The applicant then filed a substantive application No.676 of 2022 for grant of an injunction which is pending hearing and Iiled the instant application for interim injunction.

The Notice of Motion and Supporting Affidavit deponed by Senyonjo Dick on 1lft August, 2022 cor,tain the following grounds on which the Application is premised:

1. Tlnt the applicant was the original ou.ner of the suit propertg.

- 2. TlLe respondent fraudulently purchased the suit property from a one Nsubuga Robert using a forged pouer of attorney. - 3. The respondent successfullg sued the applicant in tlrc High Court. - 4. That the applicant has since applied for leaue to appeal out of time. - 5. The respondent continues to bing uaious and notorious land brokers and potential land bugers uith intentions to sell the ,on4 1o 3ra parties. - 6. That tle applicant is at the risk of being euicted and tlw suit propertg is at the nsk of being uasted bg tlte respondent. - 7. That the applicant filed in this Court an application for stag of execution or an injunction against the respondent which is slill pending heaing tuith a tikelihood o/ success. - 8. That due to the busy schedule of this Court, heaing of the main application is likely to delag. - 9. That the suit properlg is in eminent danger of being sold to 3'd parties who taill change the status quo and render the main application nugatory.

- ⁵ 10. Tlat if the Court doesn't grant an inteim order, the outame of the main application will be rendered nugatory and applicants uill be euicted. - 11. That it is in the interest of justice that an inteim order be issued against the respondent to preserue tle status quo until determination of the main application.

On the other hand, the application was opposed by the respondent through an aflrdavit in reply dated 19tt' August, 2022 and deponed by Eric Karambasaizi. The grounds in opposition that could be discerned from the aflidavit in reply can be summarized as follows:

- a) Tlnt the respondent is the registered proprietor of tle land amprbed in Leasehold Register Volume 1456 Folio B Plot 81 Block 530 Kgaggue. 15 - b) That the respondent is the judgment creditor in High Court Ciuil Suit No. 69 of 2012, Delta Petroleum (Uganda) Limited V D.ck Sengonjo utherein on the 8th of April, 2016, tle High Court of Uganda at Mukono inter alia declared the respondent as the lawful owner of tle said land. - c) Ttwt tte applicant has neuer obtained an order of tle High Court or of this Court staAing exeattion of the aforesaid judgment and decree. - d) Ttnt on the 3Ah of March, 2017, the respondent filed an application, Ciuil Application No.78 of 2017, Delta Petroleum (U) Limited V Dick Sengonjo seeking orders of this Court to stike out the applicant's Appeal in Ciuil Appeal No.20 of 2017 on grounds that tte applicant

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- ⁵ did not serue the notice of appeal on tlrc respondent within the time prescibed by lau. - e) Tlnt the parties appeared before the Registrar of this Court who informed them that the applicant had withdraun his appeal and tle respondent in turn withdrew the aforesaid application. - fl fiLat ttere is presentlg no pending appeal or notice of appeal against th.e said judgment of tlw High Court. - g) That the respondent successfullg applied for and on the 27"t June 2022 obtained an order of tle High Court at Jinja ordering the remoual of a caueat affecting the land. - h) Tlwt the respondent has lawfullg applied for and obtained a u)atant for uacant possessionfom the High Court in Jinja. - i) Ttnt the respondent uho has been denied enjogment of its adjudicated ights ouer tle land seeks to giue effect to tte said orders of tLe High Court and enjog its constitutional rights to oun and use its propertg. - I Tfnt the balance of conuenience in tlrc circumstances lies in fauour of the respondent as the registered proprietor.

At the hearing of the application, Mr. Songon Mustafa appeared for the applicant while the respondent was represented by Mr. George Arinaitwe.

Counsel for the applicant submitted that it was now a settled principle that where there is a preferred appeal and a substantive application for stay of execution pending before this Court with a clear threat of execution, the court is mandated to issue an interim order to preserve the main application and 25

- ⁵ the appeal. He further submitted that in the instant application, the applicant had filed Civit Application No.325 ol 2Ol7 for leave to appeal out of time and Civil Application No.676 of 2022 both pending hearing. That there was evidence that the respondent was in the process of selling the suit property before the disposal of the main suit. He added that this was a good case for an interim order to be issued because there is a substantive application for stay of execution that has been filed in Court and an eminent threat of evicting the applicant exists. He relied on Hutan Sung Industrles Ltd V Tatdtn Illsseln &, 2 Ors, Supreme Court Clvll Appllcatlon No.19 oJ 2OO8 for the conditions required before an interim order is issued. 10 - In reply, counsel for the respondent submitted that the principles upon which this Court can grant an interim order of injunction pending determination of the main application for injunction are that there must be a competent notice of appeal. Counsel submitted that annexure 'B" to his affidavit is a notice of appeal liled on 9m May, 2016 in the High Court at Jinja which was withdrawn' He added that upon withdrawing the appeal, the notice of appeal was taken to have been withdrawn. By withdrawing the appeal even when there is allegedly a pending application for leave to appeal out of time means that the applicant did not institute the appeal within the prescribed time' 15 20

Counsel submitted that the applicant had not shown that there was a pending substantive application for a temporary injunction. That the Notice of Motion shows the instant application referenced as No.648 of 2022 arising out of a subsequent application No.676 of 2022. In counsel's view, the substantive application ought to have been filed before the instant application. He added 25

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⁵ that by seeking an injunction to allow the applicant interfere with the respondent's use and enjoyment of the land is to invite this Court to overrule the order of the High Court without merits of the order being adjudicated upon by way of an appeal. In counsel's view, a stay of execution would have suspended the order in the decree, an injunction on the other hand would interfere with the rights of an adjudicated registered proprietor of the land. 10

Rule 2(2) of the rules of this Court provides for inherent powers of this Court to make such orders as maybe necessary for attaining the ends ofjustice.

ln Zubed.a Mohamed & Sadnt Mohamed V Lallo. Kaka Walllo. & Anor, Supreme Court Clvll Reference No. O7 of 2076 which cited with approval Hutan Sung Industrles Ltdus. TaJdln llussien o;nd 2 others SCMA No. 79 of 2OO8, the Supreme Court stated as follows;

"Considerations for tlrc grant of an interim order of stag of exeantion or interim injunction are tuhetLter there is a substantiue application pending and whether there is a serious threat of execution before hearing of tte substantiue application. Needless to saA, there must be a Notice of Appeal. See Huan Sung Industr'les Ltd us. TaJdln llusslen and 2 others SCll[A No. 79 oI 2OO8.

In summary, there ore three conditions that an applicant must satisfy to justifg the grant of an inteim order:

- 1. A competent Notice of Appeal; - 2. A substantiue application; and - 3. A senous threat of execrttion."

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5 Counsel for the applicant submitted that the applicant had liled Civil Application No.325 of 2Ol7 for leave to appeal out of time and filed Civil Application No.676 ol 2022 which are pending fixing and hearing before this Court. In reply, counsel for the respondent submitted that the applicant attached annexure "B" to his affidavit which is a notice of appeal filed on 96 10 May, 2O16 in the High Court at Jinja whoever the same was withdrawn.

I have looked at annexture "B" attached to the applicant's affidavit and indeed the applicant filed a Notice of Motion on 6ft May, 2016 in the High Court of Jinja. The respondent did not adduce any evidence to show that the applicant had withdrawn the appeal. He merely averred under paragraphs 7 and 8 of 15 his aflidavit as follows:

"7. That I om informed bg mg lauyer Mr. Peter Nkurunziza and I ueilg belieue that on tle 3Ah dag of Marcfu 2017 tle respondent filed an application Ciuil Application No.78 of 2017, Delta Petroleum (Uganda) Limited V Dick Sengonjo seeking orders of this Honourable Court to stike out the applicant's appeal in

20 Ciuil Appeal No.20 of 2017 on the grounds that the applicant did not serue the notice of appeal on the respondent within the time prescribed bg law.

8. That I am also informed bg Mr. George Ainaitwe an aduocate practicing uith PNK Aduocates and I ueilg belieue that on the 13tn of September, 2022 tle applicant tlvough his aduocate Mr. Songon and the respondent represented by

25 George Arinaitwe appeared before Her Worship Lillian Buchana, Assistant Registrar of this Honourable Court uhere the applicant's aduocate confirmed that tle said appeal had been uithdrawn and the respondent in funt uith-drew tle aforesaid application. "

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⁵ The applicant liled a substantive application referenced as Civil Application No.676 of2022 on 13th September,2022.

As to whether there is a serious threat of execution, the applicant averred under paragraph 8 of his affidavit that the respondent had on several occasions through different people threatened to evict him and sell the suit 1and. He attached annexture "D" a letter demanding the applicant to vacate the suit land. The applicant further averred under paragraph 12 of his affidavit that the respondent removed the caveats that had been lodged on the suit property and has now registered the property into his names. He attached a copy of the land title marked as annexture "E". In my view, the acts of the respondent as shown in annextures "D" and "E" amount to serious and eminent threat.

I therefore, find that the applicant has satisfied the conditions for the grant of an interim order of injunction by this Court.

The application is allowed and an interim order of injunction is hereby granted with the following Orders: 20

1) An interim order of injunction is hereby issued restraining the respondent and/or her agents, assignees, employees and/or any other person directly dealing with or acting under the respondent's authority from evicting the applicant, carrying out construction work, deploying security guards, alienating or disposing off the suit property by way of sale, mortgaging and creating other 3rd party interests on the suit property, wasting the suit land, selling, subdivision and or in any other way interfering with the suit land to alter the current status quo of the

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- ⁵ land until the final disposal of the substantive application vide Civil Application No.676 of 2022. - 2) The costs of this application shall abide the outcome of the substantive application for an order of injunction. - 3) The Registrar of this Court is hereby directed to cause list Civil - Application No. 676 of 2022 for hearing within 21 days from the date of this ruling.

Dated at Kampala this day of 2022

¹⁵ Cheborion Barishaki

JUSTICE OF. APPEAL