[2021] UGHC 62

# THE REPUBLIC OT UGANDA

# IN THE HIGH COURT OT UGANDA AT MUKONO

# MlscErrANEous APPUCATTON NO.17',t Of 2021

# (Arising from Miscelloneous Applicotion No. 86 of 2018

# ond Civil Suit No. 75 of 2013)

SUGAR CORPORATION OF UGANDA TIMITED APPLICANT

### VERSUS

#### I SENDEGE GEORGE

- 2 ASUMAN BAWALENKENDI KIZITO - 3 NAMUTEBI ERON - 4 NAKIGUDDE FLORENCE KINTU - 5 NABUNJO MANGYERI RESPONDENTS

# BEFORE: THE HON. JUSTICE DR. FLAVIAN ZEIJA

# RULING

This opplicotion is for stoy of execution. lt is brought under S. 64(e)& 98 of the CPA, S.33 of the Judicoture Act, Order 43 Rule 4, Order 44 Rule l(2),3 ond 4, Order 52 Rules lond 3 of the Civil Procedure Rules S.l 71- I .

It is seeking for orders thot:

o) The execution ond enforcement of the Ruling ond Orders of this Honoroble Court issued in Miscelloneous Applicotion No. 86 of 20lB (orising out of Civil Suit No.75 of 2013) be stoyed pending the heoring ond determinotion of the Applicont's Appeol ogoinst the soid ruling ond orders to the Court of Appeol


- b) Leove be gronted to the Appliconl to lodge on oppeol in the Courl of Appeol ogoinst the decision of Hon. Justice Botemo N. D. A delivered on the 7th April 2021, in Miscellqneous Applicotion No. 86 of 20lB - c) Costs of this Applicotion be provided for.

The opplicotion wos supported by the offidovit deponed by Mr. Ronnie Kyoue, the Applicont's Heod Legol /Compony Secretory. Briefly the grounds in support of the opplicqtion qre thot;

- l. The Applicont is oggrieved by the ruling ond orders issued in Miscelloneous Applicotion No. 86 of 2018 wherein couri ordered thot oll subsisting titles creoted out of the suit lond to wil; FC 7240 ot ⁴⁰⁷.7 5 ocres of Somwiri Kiwonuko Kotiginyo ond FC 9064 of 474 ocres of Misusero Komyo Omukobyo be concelled by the Registror of Titles ond thot the Registror of Titles be ordered to register the Ist lo 4th Respondents(oppliconts therein. for FC 9064 of 474 ocres ond the 5th Appliconl f or FC724O ot ⁴⁰⁷.7 5 ocres in Moilo Tenure. - 2. The Applicont hos through iis lowyers, M/S H&G Advocoles filed before this court o Notice of Appeol ond o letter doted I 6th April 202lopplying for o typed copy of typed ond certified ruling ond order ond o copy of the certified record of proceedings in the obove motter to be oble to formolly file the oppeol. - 3. The Applicont wos surprised to leorn thot on poge 3 of the ruling in MA 086 of 2018, on order wos gronted to the Respondents on 7lh April,2021 to proceed ex-porte for foilure to file o reply within the prescribed time. ye1 Counsel for the Applicont hod on the sqme doy intimoted to couri presided over by the Leorned Registror thot he intended to roise points of low ogoinst the gront of the opplicotion whereupon the motter wos odjourned to Mondoy l9th April 2021 oI 9.00 om for heoring.


- 4. That the Applicant's intended appeal has high and reasonable chances of success with valid grounds of Appeal which merit serious judicial consideration by the Court of Appeal interalia that; - a) The Learned Trial Judge erred in law and fact when he failed to find that the application for review was incompetent for having been served outside the time prescribed by law without any extension being sought within 15 days after the expiry of the 21 days prescribed. - b) The Learned Trial Judge erred in law and fact when he found that the Applicant (Respondent therein) had put himself outside the jurisdiction of Court for failure to file a reply yet the Applicant's Counsel was on 24th February, 2021 in court and ready to oppose the grant of the application on grounds of points of law that did not require filing of an affidavit in reply. - c) The Learned Trial Judge erred in Law and fact when he on 12th April, 2021 issued and executed the extracted Order in the matter that included an order "That the Respondents give vacant possession of **the suit land to the Applicants**" when the said particular order was not any of the orders in the ruling delivered on 7th April, 2021. - d) The Learned Trial Judge erred in law and fact when he issued the above said order when he was functus officio and further without being moved for consequential orders by the Applicant. - e) The Trial Judge erred in law and fact when he erroneously held that there was no evidence that the Governor had paid the consideration to Mr. Kamya for the suit land when there was no any obligation on the part of the Governor or the Protectorate Government to make any payment or consideration to Mr. Kamya in acquisition of the suit land. - f) The Learned Trial Judge erred in law and fact and reached an erroneous finding that there was a lease for 99 years in favor of the Applicant which has expired whereas not. - g) The Learned Trial Judge erred in law and fact when he failed to find that the alleged unpaid consideration (which is denied) if any was purportedly due on 24th September, 1912 and hence the


Respondents' suit only filed in 2013 was barred by the Law of Limitation and hence untenable.

- h) The Learned Trial Judge erred in law and fact when he allowed the application for review without determining satisfying himself that the Respondents had discovered any new and important matter or evidence which was not in their knowledge by the time the decree or judgment in H. C. C. S No. 75 of 2013. - i) The Learned Trial Judge erred in law and fact when he erroneously found that the Applicant was a trespasser on the suit land for over 60 years without considering that the Applicant was a bonafide purchaser for value. - j) Having found that the Applicant was not party to the alleged fraud, the Trial Judge erred in law and fact when he went on to order for cancellation of title in FRV 64 Folio 18 at Kasenso whose title is unimpeachable unless fraud is attributable to the registered proprietor. - 5. The Respondents have already submitted and delivered a copy of the order to the Commissioner Land Registration for cancellation of the Applicant's title - 6. That if an order of stay of execution is not granted as prayed herein, the Commissioner Land Registration will proceed to cancel the Applicant's title to the Applicant's substantial detriment and prejudice and the cancellation will render the Appeal nugatory. - 7. The Applicant's land forms the heart of the Applicant's sugar cane business with chunks and chunks of sugar cane plantations thereon, a staff camp and stores and hence the Applicant is bound to suffer irreparable and substantial loss of grown sugar cane, loss of 882.39 Acres of land and livelihood if a stay of execution is not granted. - 8. The title for the suit land was pledged by the applicant to $M/s$ Bank of Baroda to secure substantial credit sums that were granted to the Applicant to run its business and the order for cancellation of title will


dislodge the mortgoge on the title ond hence render ihe soid credit focilities due ond poyoble immediotely ond this will further cripple the Applicont Compony completely.

- 9. The Applicont will suffer o substontiol ond un imoginoble huge economic loss thot is irreporoble ond con never be otoned for in domoges whotsoever if the stoy of execution of the soid orders is not gronted immediotely. - 10. Thot if execution is not stoyed, the Appliconi's title io the suit lond will be concelled ond the Appliconl evicted from the soid lond, rendering the oppeol nugotory. - ^Il. This opplicotion hos been brought without undue deloy

The grounds in opposiiion ore contoined in the offidovit in reply deponed by Busuulwo Froncis, on Attorney to the 5th Respondent, octing on the Powers of Attorney gronted to him to prosecute this motter on beholf of the 5th Respondent. The offidovit in reply in respect to the I st to 4th Respondenis wos deponed by King Rogers Murungi on the outhority of powers of Attorney gronted to him by the 1st to 4th Respondents. Briefly, the grounds which ore similor for oll the defendonts combined ore thot;

- l. Thot the present opplicotion is boned in low on grounds thot; - o) The court order wos olreody fully executed on l9th April' ²⁰²¹ before the filing of on opplicotion for interim order which wos filed on21stApril,202l ondissuedon llth Moy,2021 . - b) The court order hod further been executed by the Registror of Titles in fovor of the 5th respondent by creoting o Moilo certificote of title for her under Kyoggwe Block 1 7l Plot I for the decreed ⁴⁰⁷.7 ⁵ ocres (165.0142 hectores) ond she hos since tronsocted on the lond by subdividing it ond selling to vorious third porties who got their respective certificotes of title.


- c) That a party in a court cause who is dissatisfied with an exparte judgment / ruling and orders thereof can only apply to the same court to set aside or vary judgment / ruling upon such terms as may be just, but not to apply for leave to appeal, hence the Notice of Appeal and intended leave to appeal are legally inconsequential as no appeal can lie. - d) It is trite law that a party who does not file a defense puts himself or herself out of court which does not wait for him or her to raise a point of law not raised in a pleading. - e) The application discloses no reasonable Cause of Action against the Respondents because the Applicant neither appeared nor applied for a review of the judgment cancelling its freehold certificate of title FRV 64 Folio 18 in the head suit No. 75 of 2013. - f) The Applicant also lacks locus standi to file this application since it no longer has legal interest, neither in the expired lease nor in the FRV cancelled certificate of title, which has twice been cancelled. - g) Though the Applicant is still in possession of the suit land, it is in trespass as declared in the ruling and a mere declaration is neither executable nor capable of being stayed.

In a rejoinder, the Applicant deponed that;

- 1. The mandate given to the Busulwa Francis in the power of Attorney to swear an affidavit on behalf of the 5th Respondent, if any, was given in respect of Civil Suit No. 165 of 2012 and not Civil Suit No. 75 of 2013 from which the instant proceedings arise. Accordingly, there is no affidavit in reply duly filed by the 5th Respondent in the instant matter. - 2. The Certificates of Title purportedly created for land comprised in Kyaggwe Block 171 Plot Nos. 1 and 37 at Namasagga are not titles created pursuant to the court order in Misc. Application No. 86 of 2018 wherein Court ordered for the creation of Mailo titles in favor of the Respondents


- 3. lnsteod, the soid titles which ore believed to be unouthentic ore purportedly creoted under the judgment of this Honoroble Court in Civil Suit No. 75 of 2013 wherein court did not order for creotion of Moilo Titles but rother o Leosehold litle for 99 yeors in fovor of ihe Applicont Compony. - 4. lt is therefore not true thot the opplicotion for stoy of execufion of the Orders in Miscelloneous Applicoiion No. 86 of 20 18 hos been overtqken by events. Further, the Applicont is still in possession of the suit lond. o foct ocknowledged by the Respondents. - 5. The purported Certificote of Title for lond comprised in Kyoggwe Block 171 Plot 37 lond ot Nomosoggo wos purportedly lssued ond registered in the nome of the 5th Respondent on 23rd April 2021 yet the Survey Deed Plon for the some lond wos only creoted ond issued by boih the Cortogropher ond Commissioner Surveys ond Mopping on 15th June 2021 well ofter the certificote of title wos purportedly issued which is highly erroneous, irregulor ond unouthentic. - 6. The interim Order for stoy of execution of this Court issued by the Hon. Principol Judge on I lth Moy 2O2l stoying the execution qnd enforcement of orders in MA. No. 86 of 2018 wos duly communicoted to the Commissioner Surveys & Mopping ond the Registror Mukono before the soid deed plons were creoted ond issued on l5th June 2021 . - 7. The irrevocqble Powers of Attorney purportedly gronted to o one Rogers Murungi by the lst -4th Respondents on 41h Jonuory 2Ol,9 wos in respect of purported lond comprised in FC 9064 ond PC No. 6840 which wos nonexistent os found by this court in its judgment in HCCS No. 75 of 2013. As such, the soid powers of ottorney were premised on o nonexistent subject motter. - 8. The Certificote of Title for lond comprised in Kyoggwe Block I 71 Plot 2 ol Kosenso believed to be unouthentic is purportedly issued under the orders of court in HCCS No. 7 5 of 2013 wherein court ordered for creotion


of a 99 year lease for the Applicant. The same applies to purported Block 171 Plot 17 annexed as R6 to the affidavit in reply for the 1st-4th Respondents and which was purportedly issued on 16th June 2021 way after this court had already issued an interim order for stay of execution of orders in MA. No. 86 of 2018.

- 9. It is false for the deponents of the said affidavits in reply to state that the orders in M. A No. 86 of 2018 have since been executed as ordered by court whereas not. - 10. The Applicant has a right and locus to file the instant application since the Applicant is entitled to its leasehold interest in the suit land for a period of 99 years as decreed by court in H. C. C. S No. 75 of 2013.

## Representation

- M/s H & G Advocates represented the Applicant - M/s The Muhwezi Law Chambers Advocates represented the Respondents.

## **Preliminary points of Law**

From the onset, the pleadings of both parties to this application raise some pertinent preliminary points of law which this court is enjoined to dispose of first. The immediate point of law raised by Counsel for the Respondents is that the orders of court were fully executed on 19th April, 2021 way before the filing on 19th April, 2021 and grant of the interim application for stay of execution on 11th May 2021. Counsel for the Applicant disputed the authenticity of the Certificates of Title purportedly issued in execution of court's orders. He submitted that the impugned Titles were not issued pursuant to the orders in M. A No. 86 of 2018 and invited court to examine the entries on the Titles attached for Kyaggwe Block 171 Plot. Nos. 1, 2, 17


ond 37 which show thot the fictitious Titles were issued pursuont to the Order in Civil Suit No. 75 of 2013 ond not orders in M. A No. B6 of 2018.

Upon exomining the record, I notice thot the only order copoble of being executed oltering entries on Certificotes of Title in regord to Civil Suit No. 75 of 201 3 is on poge 27 , where the triol judge directed thot the Commissioner Lond Registrotion concel the Defendont's Title (Applicont's herein) in respect of the free hold tenure ond the some should be substituted with o leosehold lenure from the relevont outhority for o period of 99 yeors. lt therefore follows thot no other entry or concellotion cqn by virtue of the orders orising from Civil Suit No.75 of 20lr3 cqn be ollowed to stond os it would be non-existent. On the other hond, the orders orising out of Misc. Applicotion No. 86 of 20 18, exlrocled ond signed on 12lh April 2021 ore to the effect thot the suit lond reverts io the Respondents ond thot oll subsisting Titles Certificotes of Title thereon be concelled by the Registror of Titles.

The question to determine of ihis stoge is whether the purported concellotions ond entries of Moilo inlerest on Block 17.l Plots 1,2, 17 &37 were mode by virtue of lhe orders orising from Civil Suit No.75 of 20 13 or M. A No. B6 of 2018.

First, the entry on Block I7l Plot l, wos mode on 23rd April 2021 in fovor of the 5th Respondent. Secondly, the eniry on Block I 7I Plot 2 wos mode in fovor of the lst -4th Respondents on 23rd April 202'l . Both entries on Plot ^I ond 2 were mode by virtue of the orders purportedly orising oui of Civil Suit No.75 of 2013.

Thirdly, the first entry on Block l7l Plot 17 wos mode in fqvor the lst -4th Respondents os joint tenonts on l6th June 202 1 ond lotertronsferred to o third porty on l2th )uly,2021 .

Fourthly. the entry in Block 'l 7l Plot 37 wos mode in fqvor of the 5th Respondent on 23rd April2O2l by virtue of couri order in Civil Suit No. 75 of 2013 ond loter tronsferred to o third porty on 6th July 2021.


By letter dated 14th April, 2021, the Commissioner Land Registration wrote to the Registrar High Court at Mukono requesting for a confirmation and authentication of the orders in Misc. Application No. 86 of 2018. There is no record of the Registrar issuing the requested confirmation, the basis of which the Commissioner Land Registration intended to act on the orders of court in M. A No. 86 of 2018. Just one Week after the said letter of inquiry on 21st April 2021 is when the Applicant filed the present application. One then wonders on what authority the Commissioner Land Registration could have acted if at all.

However, what is clear is that this court issued an order for interim stay of execution on 11th May 2021 and the same was duly served on the Commissioner Land Registration and received on 14th May 2021. It is also evident that the purported entries on Plot 1& 2 were supposedly made on the foundation of Civil Suit No. 75 of 2013 which does not contain any such orders for the impugned entries. As such this court does not recognize the impugned Titles as authentic legal instruments. The entries on Plot 17 and 37 suffer the same fate for being purportedly entered when there was an interim order for stay of execution duly brought to the attention of the Commissioner Land Registration and still subsisting. I am unable to agree with Counsel for the Respondents that such perpetuations could have been effected without foul play. The Respondent's preliminary point of law that the orders of court in M. A No. 86 of 2018 were already fully executed fails with the greatest contempt that it deserves. If anything was done to achieve the purported maneuvers at the Land Registry in Mukono, whatever was done was done to the detriment of the Respondents and the subsequent transferees of such maneuvers.

The second point of law raised by Counsel for the Respondents is that the Applicant has no locus standi to file the instant application on the basis of having lost its right in the suit property by reason of the promulgation of the 1995 Constitution which did not allow non- Ugandan citizens to own freehold interest in land. Moreover, the Applicant obtained the said freehold title in 2007 against the spirit of the constitution.

 Whereos I ogree thot by low, non-Ugondon citizens connot own freehold interest, I do not ogree thot it necessorily deprives them of the right to own ony other interest in lond. To soy thot the Applicont hos no locus stondi would tontomount to soying thot the Applicont hos no cose worth listening to. I om unoble to ogree. The Applicont hos o legol grievonce which this courl is enjoined 1o gronl oudience in light of the socrosonct right to o foir heoring enshrined in the Constitution of Ugondo, 1995. lt is in the interest of .iustice thot the Applicont who is incidentolly still in possession of the suit lond be given their doy in court to exploin the circumstonces under which the freehold title wos gronted in fovor of the Applicont who is o non-citizen. The preliminory point of lqw on lock of locus stondi foils.

The third preliminory point of low by the Respondents is thot o porty who is dissotisfied with on ex-porte judgment/ruling ond orders thereof con only opply to the some court to set oside or vory the judgment but no oppeol cqn lie. lt is my considered view thot it is not for courts of low to dictoie to oggrieved porties whot course of post judgment remedy they should consider. The porties should be given the leewoy to decide whot post judgment remedy better suits their intended expectotions. The outhority of Mohommed Albhoi ys. W. E Bukenyo Mukoso & Anor, Civil Appeol No.56 of 1996 cited by Counsel for the Respondents in support of his contention hos nothing similor to the focts of the preseni opplicotion. ln thot cose the Supreme Court wos considering whether or not the oppellont not hoving been o porty in ihe originol proceedings which resulted in the consent judgment sought to be reviewed hod no right to present the opplicotion forreview underSection 83 ond 101 of CPA ond Order 42r lof the Civil Procedure Rules. The preliminory question in the present opplicotion to which I hove olreody rendered on onswer is whether o porty oggrieved by on ex porle ludgment /ruling hos o righl to opply for leove to oppeol ogoinst the judgment /ruling ond the orders orising therefrom.


The fourth preliminory point of low is thot o porly who does not file o defense puts himself or herself out of court which does not woit for him or her to roise o point of low not roised in the pleoding. Counsel for the Appllcont submitted thot the order to proceed ex-porte in Miscellqneous Applicotion No.86 of 20 l7 wqs issued by the triql judge on 24th Februory 2021 when the some doy in the morning, the Applicont's Advocote hod oppeored before the Leorned Registror in the presence of the Respondents' Advocote ond informed court thot on offidqvit in reply hod not been filed since the Applicont (Respondent therein) intended to roise points of low.

^Idisogree with the ossertion thot o porty who does not filed on offidovil in reply connot to roise o point of low which wos not roised in the pleodings. It must be emphosized from the onset thot this cose relotes to o lond dispute. It is now o cordinol principle of the low thot lond motters should be resolved on merits ond the substonce of the dispute be investigoted on merits. ln ihe cose of Alhoji Yohoyo Bolyejuso vs. Developmenl Finonce lld CACA No. 34 of 2000, the Court of Appeol held thot it is o cordinol principle os for os possible os litigotion of lond motters is concerned, they should be resolved on merits. The court of oppeol in Alhoji Yohoyo Bolyeiuso vs. Development Finonce Ltd (supro) cited with opprovol the cose of Nicholos Rousous Vs. Gulom Hussein Hqbib SCCA No.9/1993 where it wos held thot odministrotion of justice requires thot the substonce of the disputes be investigoted on their merits ond thot errors, lote filings of court pleodings ond lopses should not necessorily debor o litigont from pursuing his right. See olso the cose of Fredrick Kobugo Sebugulu vs. Adminislrqlor Generol Courl of Appeol Civil Appeol No. 69/20'10, where ihe Court of Appeol cited with opprovol the cose of Alho.ji Yohoyo Bolyejuso vs. Development Finonce Lld (supro). Therefore, the foct thot Counsel for the Applicont insinuoted to the court thot the Applicont intended to roise preliminory points of low wos sufficient lestimony thot the Applicont hod intentions to porticipote in the proceedings. Consequently. the triol judge wos in violotions of the Applicont's right to be heord under Article 28 of the Constitution when he proceeded in the motler ex porte thereby denying the Applicont the right to be heord.


ln ony cose on illegolity once brought to the oltenlion of courl must be deolt with. The cose of Mokulo lnlernolionol Hd vs His Eminence Cordinol Nsubugo & Anor Civil Appeol No. 4 of 1981 which is olso still good low is to the effect thot o court of low connot sonction whot is illegol, ond illegolity once brought to the ottention of court overrides oll questions of pleoding, including ony odmission mode thereon. Since it hod been brought to the ottenlion of court thot there wos o point of low to be roised, ii wos wrong for court to dismiss such request without o heoring. To do so would omount to sustoining on illegolity on court record. For the reosons fore stoted, thls preliminory point of low equolly foils. ln ony cose, the civil procedure rules ore very cleqr. lf o porty intends to roised o point of low, he does not hqve to file o defence. He insteod notifies court of the intention to roise o point of low.

ln the offidovit of Mr. Ronnie Kyozze for the Applicont, the Applicont contested the powers of ottorney which the deponents for the Respondents relied on to be clothed with outhority to depone the soid offidovits in reply. First, the offidovit sworn by Busuulwo Froncis for the 5th Respondent wos contested on lhe ground ihot it wos in respect of Civil Suit No. 165 of 2012 ond ony opplicotions ond oppeols orising therefrom ond not Civil Suit No.75 of 20'l 3 from which the instont proceedings orise. The offidovit of King Rogers Murungi wos equolly protested on grounds thot the power of ottorney wos gronted to him in respect of lond comprised in FC 9064 ond PC No. 6840 which wos ollegedly nonexisteni ot the time. Counsel for the Applicont invited court to strictly construe the powers of ottorney to give them their ordinory meoning while Counsel for the Respondents seemed to odopt o wider interpretotion to the effect thot since Civil Suit No. 165 in respect of which the Powers of Attorney wos gronied stoyed in fovor of Civil Suit No. 75 of 2013 where in the 5th Respondent's cloim wos still in issue, the soid powers of ottorney should be construed to olso cover Civil Suit No. 75 of 2013. As regords the offidovit of Kirrg Rogers Murungi for the I st to 4th Respondents, Counsel for the Respondents submitted thot lond comprised in FC 9064 ond PC 6840 existed by 4th Jonuory 2019 when powers of ottorney were mode in fovor of King Rogers Murungi jointly with onother. Thot FC 9064 is reflected in the rulin in Misc. Applicotion No. 86 of


2018 at page 5 paragraph 2 and this FC is what was decreed in Misc. Application No. 86 of 2018 in favor of the 1st-4th Respondents.

I have considered submissions by both counsel and I opine thus:

Section 146(1) of the Registration of Title Act states:

"(1) The proprietor of any land under the operation of this Act or of any lease or mortgage may appoint any person to act for him or her in transferring that land, lease or mortgage or otherwise dealing with it by signing a power of attorney in the form in the Sixteenth Schedule to this Act."

"BLACK'S LAW DICTIONARY defines "power of attorney" as "an instrument in writing whereby one person, as principal, appoints another as his gaent and confers authority to perform certain specified acts or kinds of act on behalf of principal ... an instrument authorizing another to act as one's agent or attorney ... such power may be either general (full) or special (limited)."

The Supreme Court decision in Fredrick J. K Zaabwe v. Orient Bank & 5 Others Civil Appeal No.4 of 2006 is very instructive in respect to the scope that powers of attorney should stretch. What is key to note is that a power of attorney is issued by the donor to the donee for the latter to act not for himself but as an Agent and for the benefit of the former. The case of IMPERIAL BANK OF CANADA Vs. BEGLEY [1936] 2 All ER 367 also quoted with approval in Fredrick Zabwe (supra), is good authority for the principal that where an agent, who has been given a power of attorney to do certain things, uses the power to do something for a proper purpose, but the act done is for the agent's own purposes to the exclusion and detriment of the principal, the actions of the agent will be outside the scope of the power of attorney and are not even capable of ratification by the principal. In strictly construing the powers of attorney, nothing should be read into it that would render the purpose and effect of the instrument either to go beyond


or controry to thot which wos intended. ln the some cose, Kolureebe JSC (os he lhen wos) quoled lhe oulhor of FRIDMAN'S LAW OF AGENCy, ot poge 66 thus:-

"ln short the outhority conferred by o power ol otlorney is fhof which is "wilhin lhe four corners of the instrumenf eilher in express terms or by necessory implicotion." Hence, powers of Attorney connoi therefore, exlend to o property other thon thot for which they were gronted. Doing so would be ottempting to bind the principol to commilments beyond his express or implied outhorizotion. The preliminory point of |ow in respect to the impugned powers of ottorney ought to succeed.

Be thol os it moy I will now proceed to delermine the opplicotion on its merits. The principles under which on opplicotion of stoy of execution con succeed were well espoused in the cose of lowrence Musiitwa Kyozze Vs. Eunice Businge, Supreme Court Civil Applicotion No 18 of I990, but more pronounced in the Supreme Court Cose of Hon Theodore Ssekikubo ond Ors Vs The Attorney Generol ond Ors Consfilulionol Applicotion No 03 of 2014. Ihey include:

- l. The opplicont must show thot he lodged q notice of oppeol - 2. Thot substontiol loss moy result lo the opplicont unless the stoy of execution is gronied. - 3. Thot the opplicotion hos been mode without unreosonoble deloy - 4. Thot the opplicont hos given security for due performonce of the decree or order os moy ultimotely be binding upon him.

The Court of Appeol in Kyombogo lJniversity Vs Prof . lsaioh Omolo Ndiege, CA No 341 of 2013 exponded the list to include:

l. There is serious or eminent threot of execution of the decree or order ond if the opplicotion is not gronted, the oppeol would be rendered nugotory

- 2. That the application is not frivolous and has a likelihood of success. - 3. That refusal to grant the stay would inflict more hardship than it would avoid

The first principle is that applicant must show that he lodged a Notice of Appeal. Section 76 of the Civil Procedure Act and Order 44 Rule 1 of the Civil Procedure Rules specify Orders which are appealable as of right. Miscellaneous Cause No. 17 of 2021 from which the instant omnibus application for leave to appeal and stay of execution arise is not among the matters whose Orders are appealable as of right. As such, the intending Appellants have to first obtain leave of court in accordance with Order 44 rules 2, 3 and 4 of the Civil Procedure Rules. In the circumstances, it would unnecessary to require any proof of Notice of Appeal before the necessary leave is granted to lodge it.

In order to grant or disallow an application for leave to appeal, the key test as enunciated in the case of Sango Bay Estates Ltd & Others v Dresdner Bank A. G [1971] E. A 70 is whether there are arguable grounds of appeal. In that case, Spry V-P stated and I quote;

"leave to appeal from an order in civil proceedings will 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."

I hasten to add that it is not for court at this stage to consider matters which may in any way prejudge the issues which may arise at the appeal or


amount to a review of its own ruling. It suffices that there are grounds the merit consideration of the appellate court.

The Applicants fault the learned trial judge on eleven grounds of appeal as evidenced in paragraph 8 of the affidavit of Mr. Ronnie Kyazze in support of the application and reproduced in this ruling above. Without delving into the merits, I am persuaded that the Court of Appeal needs to for example determine whether the application for review was incompetent for having been served outside the time prescribed by law without any extension being sought within 15 days after the expiry of the 21 days prescribed. The court of Appeal would also be faced with the determination of whether the trial court misdirected itself in finding that the alleged unpaid consideration was due on 24th September 1912 and hence the Respondent's suit filed in the year 2013 after 101 years was barred by the law of limitation and hence untenable. These and many other grounds raised by the Applicant call for consideration by the court of appeal in my view. This in essence addresses the 2nd principle which is to the effect that the appeal is not frivolous and has a likelihood of success.

The $3^rd$ principle is that there is a serious threat of execution of a decree to render the appeal nugatory. In the case of **P. K Sengendo v. Busulwa** Lawrence, CACA No. 207 of 2014 wherein Kakuru JA held while quoting with approval the case of **National Enterprise Corporation v Mukisa Foods** (Miscellaneous Application No. 7 of 1998) thus:

"The Court has power in its discretion to grant a stay of execution where it appears to be equitable to do so with the view to temporarily preserving the status quo. As a general rule the only ground for stay of execution is for the Applicant to show that once the decretal property is disposed of, there is no likelihood of getting it back should the appeal succeed"

In the current application, the Respondents have demonstrated eagerness to execute the orders in Misc. Application 86 of 2018. As earlier highlighted herein, the Commissioner Land Registration already wrote to the Registrar High Court seeking for a confirmation to execute the orders relating to


creation of Mailo interest in favor of the Respondents and evidently questionable Mailo Titles seem to have been issued if the evidence presented by the Respondents in this regard is anything to go by. If the execution is fully effected, the Applicant is will eventually be evicted, bringing the entire business to shambles. As such the decision of the court of Appeal even though in the Applicant's favor, would have been overtaken by events. I am in the same measure convinced that the Applicant likely to suffer substantial loss if this application is not granted.

The 4^th principle is that the application should be brought without unreasonable delay. Counsel for the Applicant submitted that the Applicant learnt about the presence of the ruling, the subject of this application only on 16th April, 2021, the same not having been communicated by court earlier. That the instant application was filed five days later on 21st April, 2021. Counsel for the Respondents did not labor to contest this fact. From the record I observe that the ruling in Miscellaneous Application No.86 of 2018 is dated 7th April, 2021 and the extracted orders dated 12th April 2021. The present application was indeed filed on 21st April 2021 as submitted by Counsel for the Applicant. I therefore find that this application was brought without unreasonable delay.

The 5^th principle is that the applicant should provide security for due performance of the decree. Counsel for the Applicant submitted that the Applicant Company has been conducting sugar business on the suit land for decades and currently holds a factory, staff camp and substantial acres of grown sugar cane. Counsel for the Respondents did not submit to the contrary. I find therefore that the Applicant Company is reputable enough to be able to comply fully with any eventual orders of the Court of Appeal in the event that the Court of Appeal finds in favor of the Respondents. As such, I will make no orders as to security for costs.


The 6th principie is ihot refusol to gront the stoy would inflict more hordship thon it would ovoid. The sugor cone plontotions coupled with the foctory ond olher developments on lhe lond ore the fulcrum of the Applicont's business. lf the some were destroyed, there is no guorontee thqt the Respondents would be in position to fully reslore the Applicont to its lost fortune. On the other hond, the Respondents would in my view eosily recover the suit lond ond ony other orders lhot the Court of Appeol moy deem necessory to moke.

ln the result, leove is gronted to the Applicont to oppeol to the court of oppeol ond os o consequence, stoy of execution is gronted pending the determinotion of the oppeol.

Costs of the opplicotion sholl obide the decision of the court of oppeol.

Datc at Kampala tl-ris .... Day of 2021, Flavian Zclja I)RINCII'AI- UDGI]

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OI UGANDA AT MUKONO

#### MISCELIANEOUS APPUCATTON NO.17] Ot 2021

## (Arising from Miscelloneous Applicotion No. 86 of 2018

## ond Civil Suit No. 75 of 2013)

SUGAR CORPORATION OF UGANDA IIMITED APPLICANT

#### VERSUS

#### I SENDEGE GEORGE

- 2 ASUMAN BAWALENKENDI KIZITO - 3 NAMUTEBI ERON - 4 NAKIGUDDE FLORENCE KINTU - 5 NABUNJO MANGYERI RESPONDENTS

## BEFORE: THE HON. JUSTICE DR. FLAVIAN ZEIJA

## RUTING

This opplicotion is for stoy of execution. lt is brought under S. 64(e)& 98 of the CPA, S.33 of the Judicoture Act, Order 43 Rule 4, Order 44 Rule l[2),3 ond 4. Order 52 Rules I ond 3 of the Civil Procedure Rules S.l 71-l .

It is seeking for orders thot:

o) The execution ond enforcement of the Ruling ond Orders of this Honoroble Court issued in Miscelloneous Applicotion No. 86 of 20i8 (orising out of Civil Suit No.75 of 2013) be stoyed pending the heoring ond determinotion of the Applicont's Appeol ogoinst the soid ruling ond orders to the Court of Appeol.

 - b) Leove be gronted to the Applicont to lodge on oppeol in the Court of Appeol ogoinst the decision of Hon. Justice Botemo N. D. A delivered on the 7th April 2021, in Miscelloneous Applicotion No. 86 of 2018 - c) Costs of this Applicotion be provided for.

The opplicotion wos supported by the offidovit deponed by Mr. Ronnie Kyozze, the Applicont's Heod Legol /Compony Secretory. Briefly the grounds in support of the opplicotion ore thot;

- 1. The Applicqnt is oggrieved by the ruling ond orders issued in Miscelloneous Applicotion No.86 of 2018 wherein couri ordered thot oll subsisting tiiles creoted out of the suit lond to wii; FC 7240 of ⁴⁰⁷.7 5 ocres of Somwiri Kiwonukq Kotiginyo ond FC 9064 of 474 ocres of Misusero Komyo Omukobyo be concelled by the Registror of Titles ond thot the Registror of Titles be ordered to register the I st to 4th Respondents(oppliconts therein, for FC 9064 ot 474 ocres ond the 5th Applicont tor FC724O of 407 .7 5 ocres in Moilo Tenure. - 2. The Appliconi hos through its lowyers, M/S H&G Advocotes filed before this court o Nolice of Appeol ond o letter doted I 6th April 202lopplying for o typed copy of typed ond certified ruling ond order ond o copy of the certified record of proceedings in the obove motter to be oble to formolly file the oppeol. - 3. The Applicont wos surprised to leorn thot on poge 3 of the ruling in MA 086 of 2018, on order wos gronted to the Respondents on 7th April,2O2l to proceed ex-porte for foilure to file o reply within the prescribed lime, yet Counsel for the Applicont hod on lhe some doy intimoted lo court presided over by the Leorned Registror thot he intended to roise points of low ogoinst the gront of the opplicotion whereupon the motter wos odjourned 1o Mondoy l9th April 2021 ot 9.00 om for heoring.


- 4. That the Applicant's intended appeal has high and reasonable chances of success with valid grounds of Appeal which merit serious judicial consideration by the Court of Appeal interalia that; - a) The Learned Trial Judge erred in law and fact when he failed to find that the application for review was incompetent for having been served outside the time prescribed by law without any extension being sought within 15 days after the expiry of the 21 days prescribed. - b) The Learned Trial Judge erred in law and fact when he found that the Applicant (Respondent therein) had put himself outside the jurisdiction of Court for failure to file a reply yet the Applicant's Counsel was on 24th February, 2021 in court and ready to oppose the grant of the application on grounds of points of law that did not require filing of an affidavit in reply. - c) The Learned Trial Judge erred in Law and fact when he on 12th April, 2021 issued and executed the extracted Order in the matter that included an order "That the Respondents give vacant possession of the suit land to the Applicants" when the said particular order was not any of the orders in the ruling delivered on 7th April, 2021. - d) The Learned Trial Judge erred in law and fact when he issued the above said order when he was functus officio and further without being moved for consequential orders by the Applicant. - e) The Trial Judge erred in law and fact when he erroneously held that there was no evidence that the Governor had paid the consideration to Mr. Kamya for the suit land when there was no any obligation on the part of the Governor or the Protectorate Government to make any payment or consideration to Mr. Kamya in acquisition of the suit land. - f) The Learned Trial Judge erred in law and fact and reached an erroneous finding that there was a lease for 99 years in favor of the Applicant which has expired whereas not. - g) The Learned Trial Judge erred in law and fact when he failed to find that the alleged unpaid consideration (which is denied) if any was purportedly due on 24th September, 1912 and hence the


Respondents' suit only filed in 2013 was barred by the Law of Limitation and hence untenable.

- h) The Learned Trial Judge erred in law and fact when he allowed the application for review without determining satisfying himself that the Respondents had discovered any new and important matter or evidence which was not in their knowledge by the time the decree or judgment in H. C. C. S No. 75 of 2013. - i) The Learned Trial Judge erred in law and fact when he erroneously found that the Applicant was a trespasser on the suit land for over 60 years without considering that the Applicant was a bonafide purchaser for value. - j) Having found that the Applicant was not party to the alleged fraud, the Trial Judge erred in law and fact when he went on to order for cancellation of title in FRV 64 Folio 18 at Kasenso whose title is unimpeachable unless fraud is attributable to the registered proprietor. - 5. The Respondents have already submitted and delivered a copy of the order to the Commissioner Land Registration for cancellation of the Applicant's title - 6. That if an order of stay of execution is not granted as prayed herein, the Commissioner Land Registration will proceed to cancel the Applicant's title to the Applicant's substantial detriment and prejudice and the cancellation will render the Appeal nugatory. - 7. The Applicant's land forms the heart of the Applicant's sugar cane business with chunks and chunks of sugar cane plantations thereon, a staff camp and stores and hence the Applicant is bound to suffer irreparable and substantial loss of grown sugar cane, loss of 882.39 Acres of land and livelihood if a stay of execution is not granted. - 8. The title for the suit land was pledged by the applicant to M/s Bank of Baroda to secure substantial credit sums that were granted to the Applicant to run its business and the order for cancellation of title will


dislodge the mortgage on the title and hence render the said credit facilities due and payable immediately and this will further cripple the Applicant Company completely.

- 9. The Applicant will suffer a substantial and un imaginable huge economic loss that is irreparable and can never be atomed for in damages whatsoever if the stay of execution of the said orders is not granted immediately. - That if execution is not stayed, the Applicant's title to the suit land will 10. be cancelled and the Applicant evicted from the said land, rendering the appeal nugatory. - This application has been brought without undue delay $\mathbf{11}$ .

The grounds in opposition are contained in the affidavit in reply deponed by Busuulwa Francis, an Attorney to the 5th Respondent, acting on the Powers of Attorney granted to him to prosecute this matter on behalf of the 5th Respondent. The affidavit in reply in respect to the 1st to 4th Respondents was deponed by King Rogers Murungi on the authority of powers of Attorney granted to him by the 1st to 4th Respondents. Briefly, the grounds which are similar for all the defendants combined are that;

- 1. That the present application is barred in law on grounds that; - a) The court order was already fully executed on 19th April, 2021 before the filing of an application for interim order which was filed on 21st April, 2021 and issued on 11th May, 2021. - b) The court order had further been executed by the Registrar of Titles in favor of the 5th respondent by creating a Mailo certificate of title for her under Kyaggwe Block 171 Plot 1 for the decreed 407.75 acres (165.0142 hectares) and she has since transacted on the land by subdividing it and selling to various third parties who got their respective certificates of title.


- c) That a party in a court cause who is dissatisfied with an exparte judgment / ruling and orders thereof can only apply to the same court to set aside or vary judgment / ruling upon such terms as may be just, but not to apply for leave to appeal, hence the Notice of Appeal and intended leave to appeal are legally inconsequential as no appeal can lie. - d) It is trite law that a party who does not file a defense puts himself or herself out of court which does not wait for him or her to raise a point of law not raised in a pleading. - e) The application discloses no reasonable Cause of Action against the Respondents because the Applicant neither appeared nor applied for a review of the judgment cancelling its freehold certificate of title FRV 64 Folio 18 in the head suit No. 75 of 2013. - f) The Applicant also lacks locus standi to file this application since it no longer has legal interest, neither in the expired lease nor in the FRV cancelled certificate of title, which has twice been cancelled. - g) Though the Applicant is still in possession of the suit land, it is in trespass as declared in the ruling and a mere declaration is neither executable nor capable of being stayed.

In a rejoinder, the Applicant deponed that;

- 1. The mandate given to the Busulwa Francis in the power of Attorney to swear an affidavit on behalf of the 5th Respondent, if any, was given in respect of Civil Suit No. 165 of 2012 and not Civil Suit No. 75 of 2013 from which the instant proceedings arise. Accordingly, there is no affidavit in reply duly filed by the 5th Respondent in the instant matter. - 2. The Certificates of Title purportedly created for land comprised in Kyaggwe Block 171 Plot Nos. 1 and 37 at Namasagga are not titles created pursuant to the court order in Misc. Application No. 86 of 2018 wherein Court ordered for the creation of Mailo titles in favor of the Respondents


- 3. Instead, the said titles which are believed to be unauthentic are purportedly created under the judgment of this Honorable Court in Civil Suit No. 75 of 2013 wherein court did not order for creation of Mailo Titles but rather a Leasehold title for 99 years in favor of the Applicant Company. - 4. It is therefore not true that the application for stay of execution of the Orders in Miscellaneous Application No. 86 of 2018 has been overtaken by events. Further, the Applicant is still in possession of the suit land, a fact acknowledged by the Respondents. - 5. The purported Certificate of Title for land comprised in Kyaggwe Block 171 Plot 37 land at Namasagga was purportedly issued and registered in the name of the 5th Respondent on 23rd April 2021 yet the Survey Deed Plan for the same land was only created and issued by both the Cartographer and Commissioner Surveys and Mapping on 15th June 2021 well after the certificate of title was purportedly issued which is highly erroneous, irregular and unauthentic. - 6. The interim Order for stay of execution of this Court issued by the Hon. Principal Judge on 11th May 2021 staying the execution and enforcement of orders in MA. No. 86 of 2018 was duly communicated to the Commissioner Surveys & Mapping and the Registrar Mukono before the said deed plans were created and issued on 15th June 2021. - 7. The irrevocable Powers of Attorney purportedly granted to a one Rogers Murungi by the 1st -4th Respondents on 4th January 2019 was in respect of purported land comprised in FC 9064 and PC No. 6840 which was nonexistent as found by this court in its judgment in HCCS No. 75 of 2013. As such, the said powers of attorney were premised on a nonexistent subject matter. - 8. The Certificate of Title for land comprised in Kyaggwe Block 171 Plot 2 at Kasenso believed to be unauthentic is purportedly issued under the orders of court in HCCS No. 75 of 2013 wherein court ordered for creation


of a 99 year lease for the Applicant. The same applies to purported Block 171 Plot 17 annexed as R6 to the affidavit in reply for the 1st-4th Respondents and which was purportedly issued on 16th June 2021 way after this court had already issued an interim order for stay of execution of orders in MA. No. 86 of 2018.

- 9. It is false for the deponents of the said affidavits in reply to state that the orders in M. A No. 86 of 2018 have since been executed as ordered by court whereas not. - $10.$ The Applicant has a right and locus to file the instant application since the Applicant is entitled to its leasehold interest in the suit land for a period of 99 years as decreed by court in H. C. C. S No. 75 of 2013.

## **Representation**

M/s H & G Advocates represented the Applicant

M/s The Muhwezi Law Chambers Advocates represented the Respondents.

## **Preliminary points of Law**

From the onset, the pleadings of both parties to this application raise some pertinent preliminary points of law which this court is enjoined to dispose of first. The immediate point of law raised by Counsel for the Respondents is that the orders of court were fully executed on 19th April, 2021 way before the filing on 19th April, 2021 and grant of the interim application for stay of execution on 11th May 2021. Counsel for the Applicant disputed the authenticity of the Certificates of Title purportedly issued in execution of court's orders. He submitted that the impugned Titles were not issued pursuant to the orders in M. A No. 86 of 2018 and invited court to examine the entries on the Titles attached for Kyaggwe Block 171 Plot. Nos. 1, 2, 17


ond 37 which show thot the fictitious Titles were issued pursuont to the Order in Civil Suit No. 75 of 2013 ond not orders in M. A No. B6 of 2018.

Upon exomining the record, I notice thot the only order copoble of being executed oltering entries on Certificotes of Tltle in regord to Civil Suit No. 75 of 2013 is on poge 27, where the trioljudge directed thot the Commissioner Lond Registrotion concel the Defendont's Tille (Applicont's herein) in respect of the free hold tenure ond the some should be substituted with o leosehold tenure from the relevont outhority for o period of 99 yeors. lt therefore follows thqt no other entry or concellotion con by virtue of ihe orders orising from Civil Suit No.75 of 2013 con be ollowed to stond qs it would be non-existent. On the other hond, the orders orising out of Misc. Applicotion No.86 of 2018, exlrocled ond signed on 12th April 2021 ore to the effect thot the suit lond reverts to the Respondents ond thot oll subsisting Titles Certificotes of Title thereon be concelled by the Regiskor of Titles.

The question to determine ot this stoge is wheiher the purported concellotions ond entries of Moilo interest on Block 171 Plols 1,2, 17 &37 were mode by viriue of the orders orising from Civil Suit No.75 of 2013 or M. A No.86 of 2018.

First, the entry on Block I 7l Plot I , wos mode on 23rd April 2021 in fqvor of the 5th Respondent. Secondly, the entry on Block I7l Plot 2 wos mode in fovor of the lst -4ih Respondents on 23rd April 2021. Both entries on Plot ^I ond 2 were mode by virtue of the orders purporledly orising out of Civil Suii No. 75 of 2013.

Thirdly, ihe first entry on Block l7l Plot i7 wos mode in fovor the lst -4th Respondents os joint tenonts on'l 6lh June 2021 ond loter tronsferred to o third porty on l2th July,2021.

Fourlhly, the entry in Block 171 Plot 37 wos mode in fovor of the 5th Respondent on 23rd April 2O21 by virtue of court order in Civil Suit No. 75 of 2013 ond loter tronsferred to o third porty on 6th July 2021.


By letter dated 14th April, 2021, the Commissioner Land Registration wrote to the Registrar High Court at Mukono requesting for a confirmation and authentication of the orders in Misc. Application No. 86 of 2018. There is no record of the Registrar issuing the requested confirmation, the basis of which the Commissioner Land Registration intended to act on the orders of court in M. A No. 86 of 2018. Just one Week after the said letter of inquiry on 21st April 2021 is when the Applicant filed the present application. One then wonders on what authority the Commissioner Land Registration could have acted if at all.

However, what is clear is that this court issued an order for interim stay of execution on 11th May 2021 and the same was duly served on the Commissioner Land Registration and received on 14th May 2021. It is also evident that the purported entries on Plot 1& 2 were supposedly made on the foundation of Civil Suit No. 75 of 2013 which does not contain any such orders for the impugned entries. As such this court does not recognize the impugned Titles as authentic legal instruments. The entries on Plot 17 and 37 suffer the same fate for being purportedly entered when there was an interim order for stay of execution duly brought to the attention of the Commissioner Land Registration and still subsisting. I am unable to agree with Counsel for the Respondents that such perpetuations could have been effected without foul play. The Respondent's preliminary point of law that the orders of court in M. A No. 86 of 2018 were already fully executed fails with the greatest contempt that it deserves. If anything was done to achieve the purported maneuvers at the Land Registry in Mukono, whatever was done was done to the detriment of the Respondents and the subsequent transferees of such maneuvers.

The second point of law raised by Counsel for the Respondents is that the Applicant has no locus standi to file the instant application on the basis of having lost its right in the suit property by reason of the promulgation of the 1995 Constitution which did not allow non- Ugandan citizens to own freehold interest in land. Moreover, the Applicant obtained the said freehold title in 2007 against the spirit of the constitution.


Whereos I ogree thot by low, non-Ugondon citizens connot own freehold interest, I do not ogree thot it necessorily deprives them of the right to own ony other interest In lond. To soy thot the Applicont hos no locus stondi would tontomount to soying thot the Applicont hos no cose worth listening to. I om unoble to ogree. Ihe Applicont hos o legol grievonce which this courl is enjoined to gront oudience in light of lhe socrosonct right to o foir heoring enshrined in the Constitution of Ugondo, 1995. li is in the interest of justice thot the Applicont who is incidentolly still in possession of the suit lond be given their doy in court to exploin the circumstonces under which the freehold title wos gronled in fovor of the Applicont who is o non-citizen. The preliminory point of lqw on lock of locus stondi foils.

The third preliminory point of low by the Respondents is thot o porty who is dissotisfied with on ex-porie judgment/ruling ond orders thereof con only opply to the some court to set oside or vory the judgment but no oppeol con lie. lt is my considered view thot it is not for courts of low to dictote to oggrieved porties whot course of post judgment remedy they should consider. The porties should be given the leewoy to decide whot post judgment remedy betier suits their intended expectotions. The outhority of Mohommed Albhoi ys. W. E Bukenyq Mukoso & Anor, Civil Appeol No.56 of t996 cited by Counsel for the Respondents in support of his contention hos nothing similor to the focts of the present opplicotion. ln thot cose the Supreme Court wos considering whether or not ihe oppellont not hoving been o porty in the originol proceedings which resulted in the conseni judgment sought to be reviewed hod no right to present the opplicotion for review under Section 83 ond lOl of CPA ond Order 42r 1of the Civil Procedure Rules. The preliminory question in the present opplicotion to which I hove olreody rendered on onswer is whether o porty oggrieved by on ex porte judgment /ruling hos o righi to opply for leove to oppeol ogoinst the judgment /ruling ond the orders orising therefrom.

 The fourth preliminory point of low is thot o porty who does not file o defense puts himself or herself out of court which does not woit for him or her to roise o point of low not roised in the pleoding. Counsel for the Applicont submitted thot the order to proceed ex-porte in Miscelloneous Applicotion No.85 of 2017 wos issued by the triol judge on 24th Februory 2021 when the some doy in the morning, the Applicont's Advocote hod oppeored before the Leorned Registror in the presence of ihe Respondents' Advocote ond informed court thot qn offidovit in reply hod not been filed since the Applicont (Respondent therein) intended lo roise points of low.

I disogree with the ossertion thot o porty who does not filed on offidovit in reply connoi to roise o point of low which wos not roised in the pleodings. It must be emphosized from the onset thot this cose relotes to o lond dispute. lt is now o cordinol principle of the low thot lond motters should be resolved on merits ond the substonce of the dispute be investigoted on merits. ln the cqse of Alhoji Yohoyo Bolyejuso vs. Developmenl Finqnce lld CACA No. 34 of 2000. the Court of Appeql held thot it is o cordinql principle os for os possible os liligolion of lond motters is concerned, they should be resolved on merits. The court of oppeol in Alhoii Yohoyo Bolyejuso vs. Development Finonce Ltd (supro) cited with opprovol the cose of Nicholos Rousous Vs. Gulqm Hussein Hobib SCCA No. 9/1993 where it wos held thot odministrotion of justice requires thot the substonce of the disputes be investigoted on their merits ond thot errors, lote filings of court pleodings ond lopses should not necessorily debor o litigont from pursuing his right. See olso the cose of Fredrick Kobugo Sebugulu vs. Adminislrolor Generol Courl of Appeol Civil Appeol No. 6912010, where the Court of Appeol cited with opprovol the cose of Alhoji Yohoyo Bolyejuso vs. Development Finonce Ltd (supro). Therefore, the foct thot Counsel for the Applicont insinuoted to the court thot the Applicont intended to roise preliminory points of low inros sufficient testimony ihot the Applicont hod intentions to porticipote in the proceedings. Consequently, the tnol judge wos in violotions of the Applicont's right 1o be heord under Arlicle 28 of the Constituiion when he proceeded in the motter ex porte thereby denying the Applicont the right to be heord.


ln ony cose on illegolity once brought to the ottention of court must be deolt with. The cose of Mokulo lnlernolionol Lld vs His Eminence Cordinol Nsubugo & Anor Civil Appeol No.4 of l98l which is olso still good low is to the effect thot o court of low connot sonction whol is illegol, ond illegolity once brought to the ottention of court overrides oll questions of pleoding, including ony odmission mode thereon. Since it hod been broughl to the oltention of court thot there wos o point of low to be roised, it wos wrong for couri to dismiss such request without o heoring. To do so would qmount to susloining on illegoliiy on court record. For the reosons fore stoted, this preliminory point of low equolly foils. ln qny cose, the civil procedure rules ore very cleor. lf o porty intends to roised o poini of low, he does not hove to file o defence. He insteod notifies court of the intention 1o roise o point of low.

ln the offidovit of Mr. Ronnie Kyazze for the Applicont, the Applicont contested the powers of ottorney which the deponents for the Respondents relied on to be clothed with outhority to depone the soid qffidovits in reply. First, the offidovit sworn by Busuulwo Froncis for the 5th Respondeni wos contested on the ground thot it wos in respect of Civil Suit No. l65 of 2012 ond ony opplicotions ond oppeols orising therefrom ond not Civil Suit No.75 of 2013 from which the instont proceedings orise. The offidovit of King Rogers Murungi wos equolly protested on grounds thot the power of ottorney wos gronted to him in respect of lond comprised in FC 9064 ond PC No. 6840 which wos ollegedly nonexistent ot the time. Counsel for the Applicont invited court to strictly construe the powers of ottorney to give them their ordinory meoning while Counsel for the Respondenls seemed to odopt o wider interpretotion to the effect thot since Civil Suit No. ,l65 in respect of which the Powers of Attorney wos gronted stoyed in fovor of Civil Suit No. 75 of 2013 where in the 5th Respondent's cloim wos still in issue, the soid powers of ottorney should be construed to olso cover Civil Suit No. 75 ot 2013. As regords the offidovit of King Rogers Murungi for the lst to 4th Respondents, Counsel for the Respondents submitted thot lond comprised in FC 9064 qnd PC 6840 existed by 4th Jonuory 2019 when powers of ottorney were mode in fovor of King Rogers Murungi jointly with onother. Thot FC 9064 is reflected in the rulin in Misc. Applicotion No. 86 of


2018 at page 5 paragraph 2 and this FC is what was decreed in Misc. Application No. 86 of 2018 in favor of the 1st-4th Respondents.

I have considered submissions by both counsel and I opine thus;

Section 146(1) of the Registration of Title Act states:

"(1) The proprietor of any land under the operation of this Act or of any lease or mortgage may appoint any person to act for him or her in transferring that land, lease or mortgage or otherwise dealing with it by signing a power of attorney in the form in the Sixteenth Schedule to this Act."

"BLACK'S LAW DICTIONARY defines "power of attorney" as "an instrument in writing whereby one person, as principal, appoints another as his agent and confers authority to perform certain specified acts or kinds of act on behalf of principal ... an instrument authorizing another to act as one's agent or attorney ... such power may be either general (full) or special (limited)."

The Supreme Court decision in Fredrick J. K Zaabwe v. Orient Bank & 5 Others Civil Appeal No.4 of 2006 is very instructive in respect to the scope that powers of attorney should stretch. What is key to note is that a power of attorney is issued by the donor to the donee for the latter to act not for himself but as an Agent and for the benefit of the former. The case of IMPERIAL BANK OF CANADA Vs. BEGLEY [1936] 2 All ER 367 also quoted with approval in Fredrick Zabwe (supra), is good authority for the principal that where an agent, who has been given a power of attorney to do certain things, uses the power to do something for a proper purpose, but the act done is for the agent's own purposes to the exclusion and detriment of the principal, the actions of the agent will be outside the scope of the power of attorney and are not even capable of ratification by the principal. In strictly construing the powers of attorney, nothing should be read into it that would render the purpose and effect of the instrument either to go beyond


or contrary to that which was intended. In the same case, Katureebe JSC (as he then was) quoted the author of FRIDMAN'S LAW OF AGENCY, at page 66 thus:-

"In short the authority conferred by a power of attorney is that which is "within the four corners of the instrument either in express terms or by necessary implication." Hence, powers of Attorney cannot therefore, extend to a property other than that for which they were granted. Doing so would be attempting to bind the principal to commitments beyond his express or implied authorization. The preliminary point of law in respect to the impugned powers of attorney ought to succeed.

Be that as it may I will now proceed to determine the application on its merits. The principles under which an application of stay of execution can succeed were well espoused in the case of **Lawrence Musiitwa Kyazze Vs.** Eunice Businge, Supreme Court Civil Application No 18 of 1990, but more pronounced in the Supreme Court Case of Hon Theodore Ssekikubo and Ors Vs The Attorney General and Ors Constitutional Application No 03 of **2014.** They include:

- 1. The applicant must show that he lodged a notice of appeal - 2. That substantial loss may result to the applicant unless the stay of execution is granted. - 3. That the application has been made without unreasonable delay. - 4. That the applicant has given security for due performance of the decree or order as may ultimately be binding upon him.

The Court of Appeal in Kyambogo University Vs Prof. Isaiah Omolo Ndiege, **CA No 341 of 2013** expanded the list to include:

1. There is serious or eminent threat of execution of the decree or order and if the application is not granted, the appeal would be rendered nugatory

- 2. That the application is not frivolous and has a likelihood of success. - 3. That refusal to grant the stay would inflict more hardship than it would avoid.

The first principle is that applicant must show that he lodged a Notice of Appeal. Section 76 of the Civil Procedure Act and Order 44 Rule 1 of the Civil Procedure Rules specify Orders which are appealable as of right. Miscellaneous Cause No. 17 of 2021 from which the instant omnibus application for leave to appeal and stay of execution arise is not among the matters whose Orders are appealable as of right. As such, the intending Appellants have to first obtain leave of court in accordance with Order 44 rules 2, 3 and 4 of the Civil Procedure Rules. In the circumstances, it would unnecessary to require any proof of Notice of Appeal before the necessary leave is granted to lodge it.

In order to grant or disallow an application for leave to appeal, the key test as enunciated in the case of Sango Bay Estates Ltd & Others v Dresdner Bank A. G [1971] E. A 70 is whether there are arguable grounds of appeal. In that case, Spry V-P stated and I quote;

"leave to appeal from an order in civil proceedings will 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."

I hasten to add that it is not for court at this stage to consider matters which may in any way prejudge the issues which may arise at the appeal or


amount to a review of its own ruling. It suffices that there are grounds the merit consideration of the appellate court.

The Applicants fault the learned trial judge on eleven grounds of appeal as evidenced in paragraph 8 of the affidavit of Mr. Ronnie Kyazze in support of the application and reproduced in this ruling above. Without delving into the merits, I am persuaded that the Court of Appeal needs to for example determine whether the application for review was incompetent for having been served outside the time prescribed by law without any extension being sought within 15 days after the expiry of the 21 days prescribed. The court of Appeal would also be faced with the determination of whether the trial court misdirected itself in finding that the alleged unpaid consideration was due on 24th September 1912 and hence the Respondent's suit filed in the year 2013 after 101 years was barred by the law of limitation and hence untenable. These and many other grounds raised by the Applicant call for consideration by the court of appeal in my view. This in essence addresses the 2nd principle which is to the effect that the appeal is not frivolous and has a likelihood of success.

The $3^rd$ principle is that there is a serious threat of execution of a decree to render the appeal nugatory. In the case of **P. K Sengendo v. Busulwa** Lawrence, CACA No. 207 of 2014 wherein Kakuru JA held while quoting with approval the case of **National Enterprise Corporation v Mukisa Foods** (Miscellaneous Application No. 7 of 1998) thus:

"The Court has power in its discretion to grant a stay of execution where it appears to be equitable to do so with the view to temporarily preserving the status quo. As a general rule the only ground for stay of execution is for the Applicant to show that once the decretal property is disposed of, there is no likelihood of getting it back should the appeal succeed"

In the current application, the Respondents have demonstrated eagerness to execute the orders in Misc. Application 86 of 2018. As earlier highlighted herein, the Commissioner Land Registration already wrote to the Registrar High Court seeking for a confirmation to execute the orders relating to


creation of Mailo interest in favor of the Respondents and evidently questionable Mailo Titles seem to have been issued if the evidence presented by the Respondents in this regard is anything to go by. If the execution is fully effected, the Applicant is will eventually be evicted, bringing the entire business to shambles. As such the decision of the court of Appeal even though in the Applicant's favor, would have been overtaken by events. I am in the same measure convinced that the Applicant likely to suffer substantial loss if this application is not granted.

The 4^th principle is that the application should be brought without unreasonable delay. Counsel for the Applicant submitted that the Applicant learnt about the presence of the ruling, the subject of this application only on 16th April, 2021, the same not having been communicated by court earlier. That the instant application was filed five days later on 21st April, 2021. Counsel for the Respondents did not labor to contest this fact. From the record I observe that the ruling in Miscellaneous Application No.86 of 2018 is dated 7th April, 2021 and the extracted orders dated 12th April 2021. The present application was indeed filed on 21st April 2021 as submitted by Counsel for the Applicant. I therefore find that this application was brought without unreasonable delay.

The 5^th principle is that the applicant should provide security for due performance of the decree. Counsel for the Applicant submitted that the Applicant Company has been conducting sugar business on the suit land for decades and currently holds a factory, staff camp and substantial acres of grown sugar cane. Counsel for the Respondents did not submit to the contrary. I find therefore that the Applicant Company is reputable enough to be able to comply fully with any eventual orders of the Court of Appeal in the event that the Court of Appeal finds in favor of the Respondents. As such, I will make no orders as to security for costs.


The 6^th principle is that refusal to grant the stay would inflict more hardship than it would avoid. The sugar cane plantations coupled with the factory and other developments on the land are the fulcrum of the Applicant's business. If the same were destroyed, there is no guarantee that the Respondents would be in position to fully restore the Applicant to its lost fortune. On the other hand, the Respondents would in my view easily recover the suit land and any other orders that the Court of Appeal may deem necessary to make.

In the result, leave is granted to the Applicant to appeal to the court of appeal and as a consequence, stay of execution is granted pending the determination of the appeal.

Costs of the application shall abide the decision of the court of appeal.

Date at Kampala this. 2021 Flavian Zeija (PhD) PRINCIPAL JUDGE