THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
COMMERCIAL COURT DIVISION
(Arising from HCT-00-CC-MA-0380-2004)
(Arising from HCT-00-CC-CS-0737-2003)
YUSUFU MUGARURA …………………….……..…………………… APPLICANT
SIMON MASSA ……………………………………..………………. RESPONDENT
BEFORE: HON. MR. JUSTICE LAMECK N. MUKASA
The background to this application is briefly that Misc. Application No. 380 of 2004 arose from Civil Suit No.737 of 2003 wherein Haji Haruna Musiwa was the plaintiff and Simon Massa (the current respondent) the defendant. Under Civil Suit No. 737 of 2003 both parties consented to a judgment in the sum of Shs20, 500,000/=. The defendant who was the judgment debtor under the consent judgment failed to honour the judgment. Consequently the Registrar of the Commercial Court issued a warrant of attachment in the sum of Shs21,748,000/= authorizing Bamulude David an agent of M/S Spider Links Auctioneer and Court Bailiff ( the 1st Respondent in Misc. App. No. 380 of 2004) to attach the suit premises. On 17th April 2004 the said Auctioneer advertised the suit premises. On 18th May 2004 the Registrar of he Commercial Court made an Order authorizing the sale of the suit premises. Subsequently the said Auctioneer sold the suit premises to the highest bidder (the applicant) who was the 3rd Respondent in Misc. Application No 380 of 2004 for a sum of shs25, 000,000/= The Respondent Simon Massa, who was the plaintiff in Civil Suit No. 737 of 2003 and the Applicant in Misc. Application No. 380 of 2004 was dissatisfied with the sale of the suit premises. He filed Misc. Appl. No 380 of 2004 for orders that:-
(b) The purported sale of the suit premises be set aside and the suit premises be released to the applicant (the respondent now)
(c) Court should declare that the 3rd Respondent (the applicant now) did not get indefeasible right to the suit premises from the above sale.
The above order was granted by Justice E.S. Lugayizi in his ruling dated 3rd April 2006. The ramification of the said order as pointed out by the learned judge, was inter alia, that the applicant (the respondent now) was to immediately take possession of the suit premises.
The applicant filed this application upon the grounds that:-
2. The Respondent is in the process of executing the said ruling and orders.
3. It is in the interest of justice that execution be stayed pending the determination of the appeal.
This application is brought under sections 98 of the Civil Procedure Act and Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act provides:
Having outlined the law applicable, I now proceed to consider the merits of the application. In paragraphs 3, 4 and 5 of his affidavit in support of this application Yusufu Mugarura, the applicant, avers that he has commenced the appeal process against the said ruling and order by filing a notice of appeal and requesting for a typed record of proceedings so the memorandum can be prepared and filed. He attached a draft memorandum of appeal marked “C”. That the Respondent is in the process of executing the said ruling and orders by evicting the applicant from the suit premises. The applicant contends that if the execution is carried out before the appeal is heard and determined it will be rendered nugatory and he shall suffer irreparable damage.
In this affidavit in reply Simon Massa, the Respondent, avers as follows:-
In his ruing in Misc. Application N. 380 of 2004 Justice Lugayizi, in reference to section 181 of the Registration of Titles Act stated:-
The Applicant who was the 3rd Respondent, had argued that he had acquired a valid interest in the suit premises since he was a bonafide purchaser for value who acquired the interest in the suit premises without prior notice of the irregularities preceeding the sale of the suit premises.
However the applicant in paragraph 4 of his affidavit in rejoinder avers:-
Among the documents in annexture “A” above is a Certificate of Title in respect of land described thereon as LRV 32667 Folio 7 Plot No. 14 Wagagai Road Mbale. The respondent had been registered thereon as proprietor under Inst No. 346012 of 23rd August 2004 while the Applicant was registered thereon as proprietor under Inst No. 348571 of 16th November 2004. Misc. application No. 380 of 2004 was filed on 14th June 2004 and the Applicant added as 3rd Respondent by order of Court issued on 18th February 2005. Mr. Katutsi for the applicant submitted that the applicant in paragraph 4 above depones to the additional evidence that he seeks to adduce at the Court of Appeal. However there is no evidence adduced to show that the applicant had made any application pending before the Court of Appeal for leave to adduce fresh evidence. The learned Judge had based his ruling on the evidence before him and on record. The applicant is seeking this Court to base its ruling on evidence which was not before the learned Judge. The applicant has failed to show that he has very high chances of success as contended in his affidavits.
In paragraph 7 of his affidavit in Rejoinder the applicant avers that at the time he purchased the suit premises the same were valued at not more that Shs30, 000,000/= but that he had since improved the same and the correct value thereof is now over Shs80, 000,000/= and contends that if the Respondent is not restrained from disposing of the same before the appeal is heard the applicant will suffer irreparable damage.
The record shows that a valuation report was required for approval by the Registrar before the sale. The valuation Report approved by the Registrar on 6th Many 2004 had put the suit premises at a market value of Shs45,000,000/= and a forced sale value of Shs30,000,000/=. The applicant did not support his averment in paragraph 7 above with a fresh valuation to show that the suit premises had since been improved in value to over Shs80, 000,000/=.
The above notwithstanding, if the applicant was to succeed on appeal he can have a remedy in compensation for any loss that he might have incurred as a result of the transaction.
In the final result this application is dismissed with costs to the Respondent. I so order.
Hon. Mr. Lameck N. Mukasa