[2025] UGHC 375

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT LTIWERO

#### HCT- 1 7-LD-M A-123-20/25

# (Arising from HCT- 17 -LD-M'A-122-2O251

# (Arising out of Civil Suit No. 9 of 2o.231

SICKLE STRONG lul LIMITED :::::::::::::::::::::::::::::::::::r::::::r:::: APPLICANT

vs

### 1. AGNES KIMBUGWE

2. DAMBA ALFRED SOFASI :::::::::::::::::::::::::r:::::::::::::::::::: RESPONDENTS

#### BEFORE: HON. JUSTICE GODFREY HIMBAZA

# Introduction

- i This application was brought by Notice of Motion frled in this court on 3lst March, 2025 under Section 37 of the Judicature Act Cap 16, Sections 64(e) and 98 of the Civil Procedure Act Cap 282 and Order 52 rules 1 & 3 of the Civil Procedure Rules S 71- 1, for the following reliefs; - a) An order for stay of execution of the decree in Civil Suit no. HCT-17- LD-CS-OOO9-2O23 be issued pending hearing and determination of the main application for setting aside the judgment - b) Costs of the application be provided for. - The grounds of this application are contained in the affidavit in support deposed by Diana Nabuuso, a Director of the applicant company, who also deposed the applicant's affidavit in rejoinder. 2 - The respondents filed an affidavit in reply deposed by Agnes Kimbugwe, on her own behalf and on behalf of the second respondent Damba Alfred Sofasi. 3 - When the matter came up for hearing on 14s April,2025, Counsel for the applicant prayed that the Administrative Interim Order dated 14tr, April, 4

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2025, be extended since the hearing and determination of the instant application had not yet commenced ,in order to avoid the danger of eviction of the applicant. The respondents' counsel opposed the prayer to extend the interim order. I subsequently invoked inherent powers of Court and extended the validity of the said Order until disposal of the instant application. I also directed the parties to lile their respective submissions which have been considered by this Court.

#### ReDresentation

5. The applicant was represented by Counsel Pecos Mutatiina of Kasirye, Byaruhanga & Co. Advocates, while the Respondents were represented by Counsel Bwire Denis of Mbeeta, Kamya & Co. Advocates.

## Bac und to the a ation

- 6. The lst and 2.d Respondents/ Plaintiffs Kimbugwe and Damba filed a suit vide HCT- 17-LD-CS-0009-2023 against several defendants namely; Sarah Namutebi Wesike, Lugudde Samuel, Godfrey Kavuma, Nsubuga Moses and the Commissioner Land Registration, for a declaration that the 4h defendant -Moses Nsubuga, fraudulently obtained and procured registration of his interest on the Certihcate of Title for the suit land comprised in Buruli Block 185 Plot 5 at Kiranga Nakasongola, - ⁷. When the matter came up for hearing, it was noted that the 3rd and 4th defendants had not filed their written statements of Defence, hence the suit proceeded ex parte against them. In a judgment dated 2 l st March, 2025, my learned sister Kania J. decreed that the 4th defendant had fraudulently acquired and registered his interest in the suit land and the Commissioner Land Registration was directed to cancel the said entry and issue a Special Certificate of title in the name of the Administrators of the estate of the late Andereya Luwandaga and ordered the current occupants to be evicted from the suit land. - 8. The applicant herein has filed this application seeking for an order of Stay of Execution on the ground that they have filed an application to set aside and or review the judgement since the matter proceeded without them

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participating in the proceedings yet they are in occupation of the land as lessees.

## Issues for determlnatlon

- I The following issues were raised by the parties. - a) Whether the applicant has sufficient grounds for grant of an order of stay of execution - b) What remedies are available

## Applicant's case and submiseions

- 10. Counsel for the applicant argued that the applicant entered into a Lease Agreement with Moses Nsubuga the 4s defendant in Civil Suit no 9 of 2023 on 27fi July 2017 for a term of 99 years over land comprised in Buruli Block 185 plot 5, land at Kiranga measuring approximately 320 acres. - 11. Counsel averred that before the applicant acquired the leasehold interest, a thorough due diligence over the suit land was conducted in which boundary opening was done , a search conducted both at land ofhce and physically on the ground to establish if there were any incumbrance on the land and indeed none was found. - 12. He contended that upon execution of the lease agreement, the applicant took immediate possession of the subject land in August 2Ol7 and has since developed the said land with a solar Coffee Processor worth USD 250,000, Coffee planting & production and tree plantation on large scales without any interruptions and or contestations from any third parties claiming interest or ownership over the subject land. - 13. That unfortunately, at the time of instituting H. C. C. S No. 9 of 2023, the plaintiffs/ respondents did not include the Applicant as a defendant in the suit yet it is in physical possession of the suit land. - 14. Counsel further argued that the plaintiffs commenced and maintained a suit against Moses Nsubuga as the 4tr, defendant yet he had passed on in 2O2l way before commencement of the suit. - 15. He contended that being aggrieved by the judgement , the applicant has now filed Misc. Application no. 122 of 2025 seeking to set aside the judgement

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which is pending hearing and determination by this court. However, that there is danger of the respondents executing the orders of court by writing to the Commissioner Land Registration for cancellation of the late Nsubuga Moses's title from whom the Applicant derives the lease interest and evicting the Applicant from the suit land. He averred that If the stay of execution is not granted, the applicant shall suffer substantial loss if the certificate of title is cancelled. This is because, the applicant will be evicted and the applicant's investments on the suit land worth millions of dollars shall be wasted yet it expended money bona fide in acquiring this land.

- 16. Counsel relied on the authority of Theodore Ssekikuubo& Ors Vs. Attorney General & Anor SCCA No. O6 of 2O13 where it was stated that for such an order to issue, there must be an appeal before this court which is likely to succeed or at least shown to be arguable. Secondly, that it must be proved that the applicant would suffer irreparable injury or the appeal would be rendered nugatory. Thirdly, that in the event of doubt, the Court may determine the matter on a balance of convenience. - 17. Counsel referred to paragraph 12 of the affidavit in support that states that the applicant filed an application to set aside the judgement and that the said application has a high likelihood of success because the judgement sought to be set aside was delivered against a dead person making it ^a nuliity. - 18. Counsel contended that the applicant is likely to suffer irreparable loss and damage if this order is not granted.

# Submissions of Counsel for the Respondent on Issue l.

- 19. Counsel for the respondents vehemently opposed the application. The grounds of opposition were contained in the affidavit of the lst respondent. Counsel opposed the application on the following grounds. - a) The applicant was incorporated on 5fr October 2017, and the purported lease agreement was executed on 27h Jwly 2Ol7 , which was before the incorporation of the applicant as a company. The said lease agreement is a nullity as a non-existent person cannot contract in Law.

- b) The purported lease agreement provides for a ridiculous premium amount of Ugsh 1,000/= (One Thousand Shillings Only) which is not commensurate with the value and size of the suit land. 320 Acres of land cannot be leased at a premium of Ugsh 1,000/= - c) At the time of executing the purported lease agreement, the certificate of title was still in the names of the Administrators of the Estate of the late Andereya Luwandaga. - d) That the applicant did not produce the purported due diligence report, a sale agreement between Godfrey Kavuma and Moses Nsubuga showing how the land changed from the names of the Administrators to Godfrey Kavuma and then Nsubug Moses. - e) That ever since the beneficiaries of the estate of Andereya Luwandagga got to know of these fraudulent transactions, they lodged caveats on the title one being lodged on 2l"t June 2018. - f) That the applicant being a foreign company, cannot claim to have acquired any interest from a lease that is not registered under the Law and more so, there is no lease registered on the title as an incumbrance. - g) That the applicant got to know about the suit on 21"t February 2025 but chose to sit back instead of joining the suit. - 2O. Counsel for the respondents further averred that the applicant is not an aggrieved party within the meaning of the Law. He cited the case of Re:Nakivubo Chemists(Uf Ltd, 1979 HCB 12 and Mohammed Allbhai Vs Bukenya Mukasa SCCA No. 56 of 1996, where the expression "Aggrieved partl/ was delined to mean a person who has suffered a legal grievance. Citing the case of Adonia Vs Mutekanda (f97O) EA 429, he argued that such a third party must establish a legal grievance before being entertained to set aside a judgement. Counsel argued that the applicant has not demonstrated a legal grievance.

# Resolutiou of Iasue I bv Court.

21. I have had the benefit of thoroughly examining the affidavits of the parties, their submissions as well as the annextures to their respective affidavits.

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This application was brought under section 37 Judicature Act, Section 64(e ) and 98 of the Civil Procedure Act,O.52 r 1& 3 Civil Procedure Rules. However, the procedural law that governs applications for Stay of Execution is O.22 r 23 Civil Procedure Rules.

22. The principles on which court relies to grant Stay of Execution were laid down in the case of Theodore Ssekikuubo & ors Vs. Attorney General & Ors, Constitutional Appllcation no. O3 of 2OL4 where the court propounded as follows;

"An applicant must establish that his appeal has a likelihood of success or a prima facie case in his appeal. That the applicant will suffer irreparable damage or that the Appeal will be rendered nugatory if a stay is not granted. If the above has not been established, court must consider the application on balance of convenlence

23. Further, in Lawlence Musiitwa Kyazze Vs, Eunice Busingye SCCA No. 18 of 199O 9L9921 iv KALR 55, Supreme Court stated as follows;

"An application for stay of execution pending appeal is designed to preserve the subject matter in dispute so that the rights of the appeliant who is exercising his /her right of appeal are safeguarded and the appeal if successful is not rendered nugato4/'.

- 24. I wish to note that the principles laid down in the cases of Theodore Ssekikuubo (supraf and Musiitwa l(yazze (supra) (much as they were set by the Supreme court), are also applicable in High court and cut across applications for Temporary Injunction, Stay of Execution and Stay of Proceedings. - 25. Turning to the merits of this application, i wish to address the issue of likelihood of success of the application for setting aside the judgement. In the case of Gapco Uganda Ltd Vs. Kaweesa & Anor(MA No.259 of 2013) "likelihood of success" was defined as one where;

"The Court is satisfied that the claim is not frivolous or vexatious and that there is a serious question to be tried".

- 26. I have had the benefit of looking at the judgement of my learned sister Lady Justice Rosette Comfort Kania which is the subject of this application for review and setting aside, i have discovered a few helpful facts in the determination of this application. The facts are as follows; - a) The suit proceeded ex parte against the defendants - b) Some of the defendants i.e l"t and 2"d defendants had engaged with the plaintiffs to reach an amicable settlement. - c) Court visited the locus on 2 ^lst February 2023 and examined the applicant's documents to wit a lease agreement dated 27b July 2017 between the 4s defendant Nsubuga Moses and the applicant (Sickle strong (u) Ltd). - d) Court wrote to the Commissioner Land Registration Luwero MZO Bukalasa on 7fi March 2025 requesting for a record of all the entries on the land comprised in Buruli Block 185 plot 5 at Kiranga, Nakasongola District (the suit land). - e) The requested information was provided vide letter dated 13s March 2024. - ²⁷. The basis of the applicant's claim of interest in the suit land is a lease agreement executed on 276 July 2017 between the 4th defendant Moses Nsubuga and the Applicant Sickle strong (u) Ltd. However, according to the Certilicate of Incorporation, the company was incorporated on 56 October 2077 over two months after it had entered into the lease agreement. The question that arises is, 'did the company have capacity to contract, being a non-existent entity at that time?'The answer is obviously no. - 28. Furthermore, a look at the transactions on the certificate of title reveals that the l"t and 2"d defendants who were administrators of the estate of Andereya Luwandaga were the registered proprietors of the suit land having been registered on 6e July 2O17 under instrument no. BUK 64022. The land was then registered in the names of Godfrey Kavuma on l"t August 2O17 under instrument no. BUK. 16506. It was later transferred into the names of the 4tr defendant Moses Nsubuga under instrument no. BUK. 169533 who

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eventually leased the land to the applicant. According to the documents ^I have examined, the lease agreement was signed between the applicant company and Moses Nsubuga on27b July 2O17. By that time, the land was still in the names of the Administrators of the estate of Andereya Luwandaga who are the 1"t and 2"d defendants and the siblings of the respondents in this application. Paragraph 4 of the applicant's affidavit in support indicates that the applicant did thorough due diligence over the suit propert5r before entering into the lease agreement. If indeed it had been done, it would have revealed to the applicant that the land did not belong to Moses Nsubuga at that time. My conclusion is that Moses Nsubuga entered into a lease agreement with the applicant without authority because he was neither the registered owner nor the administrator of the estate of Andereya Luwandagga.

- 29. I have also examined the lease agreement i noticed that it was neither registered nor entered on the title as an incumbrance. Much as the applicant took possession of the land and carried out developments as contended in the affidavit in support of the application; they did so without authority. Section 41(2) ofthe Land Act provides that every lease by a foreign person, that is over five years must be registered in accordance with the Registration of Titles Act. I have - 30. Moreso, according to the lease agreement, the applicants were supposed to pay premium of Ugsh1,0O0/=(One Thousand Shillings only). This is quite ridiculous given the size of the land i.e 32O Acres and the amount of investment that the applicant purports to have injected in. In my view, the application has failed to prove that the applicant has a legally recognisable interest in the suit land and therefore has failed to establish a prima facie case with a high probability of success, capable of setting aside the judgement. - 31. Having found that the applicant did not derive a legal interest in the land given that the lease was created by a person who was not the owner of the

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land, i Iind it academic to delve into the element of irreparable damage and balance of convenience. I therefore resolve the lst issue in the negative.

# What remedles available to the parties.

32. In the final result, I hnd that a case has not been made out for this court to exercise its discretion to grant a stay of execution. In light of the reasons that I have given above, I find that this application lacks merit and therefore fails.

This application is therefore accordingly dismissed with costs to the Respondents.

Dated this day of 2025 GO AG. HIM