The Court of Appeal has emphasised that it cannot grant an injunction or stay over an interest in land it has already determined to be non-existent.

The Court of Appeal has affirmed that an application to injunct the alienation of a party's proprietary interests, (in this case Mailo interests), is redundant since the court has already ruled that no valid Mailo interest exists for the Applicant. The court emphasized that it cannot grant an injunction or stay an interest in land that it has previously determined to be nonexistent. Doing so would amount to preempting an appeal intended for the Supreme Court or effectively reversing its own ruling on the validity of the Mailo interest.

Background

The application was brought by Notice of Motion under Rules 2(2), 6(2)(b), and 43 of the Judicature (Court of Appeal Rules) Directions, SI 13-10, as well as Section 33 of the Judicature Act and Section 98 of the Civil Procedure Act. The applicant sought the following orders:

A stay of execution and implementation of the decree and all orders of the Court of Appeal in Civil Appeal No. 0314 of 2020. This included restraining the respondent and its agents from petitioning the Commissioner for Land Registration to cancel the suit certificate of title (Bulemezi Block 15, Plots 96 and 97), as well as from dispossessing the applicant until the Supreme Court determines the appeal.
If execution had already been effected by the time of hearing the application, a temporary injunction restraining the respondent from alienating the suit land to third parties pending the appeal.
An order for costs of the application.

Grounds for the Application

The application was supported by the affidavit of Muluta Wilson William, who argued that:

The applicant had filed a notice of appeal challenging the decree in Civil Appeal No. 0314 of 2020.
Execution was imminent, as the decree was self-executing and could be implemented by the Commissioner for Land Registration upon service of the decree.
A stay of execution was necessary to safeguard the applicant’s right of appeal.

Respondent’s Opposition

The respondent, through an affidavit sworn by Dr. Mumtaz Kassam, opposed the application on the following grounds:

The application was moot since the decree had already been enforced by the Commissioner for Land Registration, who had canceled the titles as ordered by the court.
The application lacked merit and did not satisfy the conditions for the grant of a stay of execution.

Court’s Determination

The Court of Appeal found that the application did not meet the established principles for granting a stay of execution. The key principles, as outlined in Hon. Theodore Ssekikubo & 3 Ors v Attorney General & 4 Ors (CA No. 06 of 2014), require an applicant to prove that:

The appeal has a high likelihood of success or presents a prima facie case.
The applicant will suffer irreparable harm if a stay is not granted.
The balance of convenience favors the applicant.

The court noted that:

The respondent was in full possession of the suit land as the holder of the Freehold Certificate of Title, and the applicant had not demonstrated any legal right to claim irreparable damage from eviction.
The application was moot because the orders of the Court of Appeal in Civil Appeal No. 0314 of 2020 were self-executing and had already been implemented, making them incapable of being stayed.
The court found that:
- The applicant’s memorandum of appeal did not raise triable issues with a high likelihood of success.
- The applicant had not demonstrated possession of any portion of the suit land, nor provided evidence of an irreparable loss.
- The balance of convenience favored the respondent, who held a valid Freehold Certificate of Title.
- The application had been overtaken by events, as the Commissioner for Land Registration had already executed the court’s decree.
Conclusion
The Court of Appeal dismissed the application, reiterating that an injunction cannot be granted on a non-existent interest. The court also emphasized that the applicant failed to establish sufficient grounds warranting a stay of execution pending appeal. The court reiterated that its decision could not be overturned except through an appeal to the Supreme Court.