Luggya v Kikonyogo and Another [2021] UGCA 219

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

Hearing a single-Justice application, the Court of Appeal struck out the respondents' affidavit in reply for being sworn by the first respondent on behalf of the second without the written authority required by O.1 r.12 of the Civil Procedure Rules, rendering it incurably defective. The court declined the prayer for an interim stay of proceedings because the suit had already been concluded by judgment, leaving no proceedings to stay. Applying the three conditions for an interim order (a competent notice of appeal, a substantive application, and a serious threat of execution), the court found all satisfied and granted an interim injunction restraining the respondents from dealing with the disputed land pending determination of the substantive application.

Outcome

Interim injunction granted; interim stay of proceedings refused; respondents' affidavit in reply struck out.

Facts

The applicant claimed to be a nephew and beneficiary of the estate of the late Tereza Naluggya, registered proprietor of land comprised in Mawokota Block 92 Plots 190, 193 and 242. He sued the respondents in Mpigi High Court Civil Suit No. 08 of 2018 seeking declarations that the land formed part of the estate and that the respondents fraudulently obtained title. On 10 August 2020 the suit was dismissed for failure to prove fraud. The applicant filed Civil Appeal No. 089 of 2021 and a substantive application (Civil Application No. 230 of 2021) for an injunction. He alleged the respondents had begun subdividing the disputed land into several plots and threatened to evict him and others deriving interest from him. He sought interim orders pending the substantive application. The respondents opposed, contending the applicant had sold the land to a third party, abused court process, and lacked an arguable appeal.

Issues

1. Whether the affidavit in reply sworn by the first respondent on behalf of the second respondent without filed written authority was defective.
2. Whether an interim order of stay of proceedings could issue where there were no pending proceedings but a final judgment had been delivered.
3. Whether the applicant satisfied the conditions for the grant of an interim order of injunction pending determination of the substantive application.

Orders

• The affidavit in reply sworn by Kikonyogo Richard dated 18th October 2021 is struck off for non-compliance with O.1 r.12 of the Civil Procedure Rules.
• The interim order of stay of proceedings is declined as there are no proceedings to stay.
• An interim order of injunction is issued restraining the respondents, their agents and any other person from selling, mutating, transferring, evicting or dealing with land comprised in Mawokota Block 92 plots 190, 193 and 242 pending determination of Civil Application No. 230 of 2021.
• The costs of this application shall abide the outcome of the substantive application.
• The Registrar is directed to cause Civil Application No. 230 of 2021 to be listed for hearing within 21 days.

Rules and key headnotes

Legislation cited (8)

• Judicature Act Cap 13 s.10
• Judicature Act Cap 13 s.12
• Rules of the Court of Appeal r.2(2)
• Rules of the Court of Appeal r.6(2)(b)
• Rules of the Court of Appeal r.42(2)
• Rules of the Court of Appeal r.43(1)
• Rules of the Court of Appeal r.43(2)
• Civil Procedure Rules O.1 r.12

Cases cited (8)

• Robert Kavuma v Hotel International Ltd (Supreme Court Civil Appeal No. 8 of 1990)
• Lawrence Musiitwa Kyazze v Eunice Busingye (Supreme Court Civil Application No. 18 of 1990)
• Bishop Patrick Baligasima v Kiiza Daniel and Others (High Court Miscellaneous Application No. 1495 of 2016)
• Nakalema Binaisa and 3 Others v Mucunguzi Myers (High Court Miscellaneous Application No. 0460 of 2013)
• Makerere University V St. Mark Education Institute Ltd & Ors (1994) I.ALR 26
• Godfrey Sentongo v David Balya Katumba (Court of Appeal Civil Application No. 274 of 2017)
• Zubeda Mohammed and Sadru Mohamed v Lalla Kaka Wallia and Another (Supreme Court Civil Reference No. 07 of 2015)
• Huang Sung Industries Ltd v Tajdin Hussien and 2 Others (Supreme Court Miscellaneous Application No. 19 of 2008)

The original judgment as reported. Read the original PDF before relying on any passage.