Nabossa Aisha v Yagala Christine and Others (Civil Application No. 26 of 2025) [2025] UGSC 50 (5 November 2025)

5 THE REPUBLIC OF UGANDA, IN THE SUPREME COURT OF UGANDA AT KAMPALA crvll APPLICATIoN N0. 026 0F 2025 (ARTSTNG FRoM CIVIL APPEAL N0. 031 OF 2025) NABOSSA AISHA} VERSUS 1. YAGALA CHRTSTINE) 2. NALUGYA PR0SCoVIA) 3. NAKTYTNGTBTRAH) 4. THE ADMINISTRATOR OF THE ESTATE OF THE LATE EMMANUEL BINYERERE} 5. THE COMMTSSToNER LAND REGISTRATIoN) APPLICANT 10 15 20 25 30 RESPONDENTS RULING OF CHRISTOPHER MADRAMA IZAMA, JSC The Appticant todged the present apptication pursuant to sections 7, 8(1), and 42 of the Judicature Act, Cap 16, section 98 of the CiviL Procedure Act, Cap 282,0rder 4l RuLe 1 of the CiviL Procedure Rutes, as wetl as Rutes 2(2), 6(2)(b), 41(2), and 42 of the Judicature (Supreme Court Rul.es) Directions, seeking an order of temporary injunction to restrain the fourth respondent from undertaking any act or transaction that may adversety affect, or resutt in the al.ienation of, the Appticant's interest in, or possession of, the Land comprised in Kibuga Btock 2 Ptot 30, situated at Sir Apotto Kaggwa Road, Kampata. The Appticant further seeks an order for costs. The apptication is supported by the aff idavit of the Appticant, which sets out the grounds upon which the apptication is premised. The satient facts, as averred in the motion, may be summarized as fot[ows. 1. The Appticant instituted HCCS No. 28 ol201t+, Nabossa Aisha v. Yagata Christine & 4 Others, seeking, inter a[ia, dectarations and rectification 1 of the certificate of titLe rel.ating to Kibuga Btock 2 Pl.ot 30, Sir Apol.to Kaggwa Road, Kampata. 2. White HCCS No. 28 ot 2014 was stit[ pending, the Appticant sought a temporary injunction in HCMA No. 237 of 2015. Upon the hearing of this apptication, the parties were directed to fite written submissions. 3. 0n l't December 2016, the High Court detivered its ruting in HCMA No. 237 ot 2015, dismissing the main suit, HCCS No. 28 of 2014, attegedty without granting the Appticant a fair hearing or triat. 4. The Appticant, dissatisfied with the judgment, decree, ruting, and orders in HCMA No. 237 of 2015 (wherein HCCS No. 28 of 2014 was dismissed), appeated to the Court of Appeat of Uganda. 5. 0n l't December 2016, the Appl.icant frted HCMA No. 2698 of 2016 and HCMA No. 2699 of 2016, seeking a stay of the consequences of the High Court's decision, pending the hearing of her appeat, with a view to maintaining the status quo of the suit [and. 6. Both HCMA No. 2699 of 2016 and HCMA No. 2698 of 2016 were heard and determined in the Appticant's favour, with the High Court issuing orders preserving the status quo over the suit [and. 7. During the hearing of HCMA No. 2698 of 2016, it was contended by the fourth respondent that he was not served with the notice of appeal and the letter requesting the record of proceedings; however, the Court found that service had indeed been effected. 8. The AppLicant subsequentty instituted Civit AppeaL No. 84 of 2017, Nabossa Aisha v. Yagata Christine & 4 Others, seeking to set aside the decision and orders of the High Court. 9. White Civit Appeat No. 84 ot 2017 was pending, the fourth respondent instituted Civit Apptication No. 399 of 20'17, seeking to strike out the appeal. on grounds that the notice of appeaL had not been served upon him. 10. 0n 19th July 2023, Civit Appeat No. 84 ot 2017 was calted for hearing, and, by consent, the parties adopted their respective written submissions as fil.ed. 10 15 20 25 30 35 2 5 11. 0n 26th August 2025, the Court of Appeat detivered its judgment, striking out and/or dismissing the Appticant's appeal' on the ground that she had faited to take essentia[ proceduraI steps in prosecuting the appeaL. 12. ln arriving at its decision, the Court of Appeat consotidated the hearing of the Appticant's appeat (Civit Appeat No. 84 of 2017) with Civit Apptication No. 399 of 2017, notwithstanding that the latter had neither been catted for hearing nor prosecuted by the fourth respondent. 13.The Appticant al.teges that the Court of Appeat's decision, simitar to that of the High Court, was predicated upon a technical misdirection, faiting to address the substantive merits of the Appticant's ctaim regarding atLeged itl.egatity and procedura[ irregutarities in the High Court dismissaI decision. 14.The decision of the Court of Appeat has enabted the fourth respondent to undertake acts or transactions in respect of the suit property which may prejudice the Appticant's interests and possession thereof. i5.The Appticant, dissatisfied with the entirety of the Court of Appeat's decision, instructed her counse[ to Lodge an appeal to the Supreme Court of Uganda. 16. Through her counset, the Appticant fited a notice of appeal and requested the record of proceedings, both of which were duty served upon at[ respondents. 17. The Appticant's c[aim arises from benef iciaI inheritance, and she stands to suffer irreparabl.e harm shoutd the respondents proceed to evict her or otherwise undermine her interest in the suit property. 18.The AppLicant notes that, given the negative order dismissing her appeal., no stay of execution is avaitabLe before the Court of Appeat, and any post-judgment apptication for injunctive retief woutd not receive expeditious attention due to the court's sessionaI sittings. 19. The Appticant contends that her appeal woutd be rendered nugatory if the instant appl.ication is not granted, as her possession and enjoyment of the property is in imminent jeopardy. 10 15 20 25 30 2( 3 5 20. The appeaL, she submits, raises substantial questions of law concerning the rectification of tittes and succession, and has a high tikeLihood of success. 21. The Appticant asserts that it is in the interest of justice that the motion be attowed. The apptication is further supported by the affidavit of Ms. Aisha Nabossa, which reiterates the facts forming the basrs for the apptication, and additionatty avers that she was out of the country on a re[igious pitgrimage at the time the Court of Appeat del.ivered its judgment, and upon being notified, promptty instructed her counsel to appea[ to the Supreme Court. At the hearing of the apptication, Mr. Felix Kintu Nteza appeared for the fourth respondent; Mr. Katende Steven for the first, second, and third respondents; and Mr. Yusuf Betunda together wrth Mr. Peter ALLan Musoke for the Appl.icant. counseI for the first, second, and third respondents did not oppose the appl.ication, counse[ for the fourth respondent opposed- The pteadings reveal that the AppLicant's suit in the High Court was dismissed as time-barred, having been instituted outside the statutory timitation period of twelve years for recovery of [and. The Appticant's appeaI to the court of Appeat was struck out for faiture to effect service of the notice of appeat and request for the record of proceedings, as required by Law. Aggrieved, the Appticant has appeated to this Court, raising, inter atia, the foLl.owing grounds (as per the draft memorandum of appeat): 1. That the learned Justices of the court of Appeat erred in law and fact in detivering a consotidated judgment in Civit AppeaL No. 84 of 2017 and Civit AppLication No. 399 of 2017 without an order for consotidation. 2. That the learned Justices erred in law in entering judgment in the appeat based on Civit Apptication No. 399 ot 2011, which was neither catLed for hearing nor prosecuted. 10 15 20 25 30 4 3. That the learned Justices erred in law and misdirected themsetves by fail.ing to evatuate the pteadings and evidence in their entirety and, consequentty, wrongl.y concluded that the Appticant had not served the fourth respondent with the necessary documents. 4. That the learned Justices erred in law in hoLding that Civil. Apptication No. 84 of 2017 was fited out of time. 5. That the learned Justices erred in [aw and in fact in detivering judgment without the requisite quorum. The Appticant seeks orders from this Court: (i) atLowing the appeaL and setting aside the judgment and orders of the Court of Appeat; (ii) remitting the matter to the Court of Appeat for rehearing before a differentty constituted bench, and (iii) reinstating the protective order preserving the status quo, or granting a substitute temporary injunction pending the disposat of Civit Appeat No. 84 ot 2017. When the apptication was mentioned, I requested counsel to address the question of whether this Court is property seized of jurisdiction. Counsel instead delved into submissions on whether the apptication shoutd first have been fited in the Court Appeat as commanded by the mandatory provisions of Rute 41 (1) of the Judicature (Supreme Court Rutes) Directions or whether the apptication fatts within the exception to the rute under 41 (2) where the court may grant an apptication fiLed direct to the Supreme Court to preserve the right of appeat. Rute 41 of the Judicature (Supreme Court Rutes) Directions stiputates that: 41. 0rder of apptications to the court and to Court of Appeat. (1) Where an application may be made either to the court or to the Court of Appeat, it shatl. be made to the Court of AppeaI first. (2) Notwithstanding subru[e (1) of this rute, in any civiI or criminal matter, the court may, in its discretion, on apptication or of its own motion, give leave to appeal and make any consequentiaI order to extend the time for the doing of any act, as the justice of the case requires, or entertain an application under ru[e 10 15 20 25 30 5 5 6(2)(b) of these Rutes to safeguard the right of appeaL, notwithstanding the fact that no application has first been made to the Court of Appeat. The point to be made is that the issue of jurisdiction arises from articl.e 132 (2) of the Constitution which stiputates that "An appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as may be prescribed by law. The law which prescribes this appetl.ate jurisdiction is found in the Judicature Act. SpecificatLy, the Supreme Court's jurisdiction as a second appettate court is derived from section 6(1) of the Judicature Act, which provides that: 'An appeaI shatt tie as of right to the Supreme Court where the Court of AppeaI confirms, varies or reverses a judgment or order, inctuding an intertocutory order, given by the High Court in the exercise of its original jurisdiction and either confirmed, varied or reversed by the Court of Appeat." ln the instant apptication, the facts are that; the Appticant's suit in the High Court was dismissed, and the appeal to the Court of Appeat was struck out for procedural, defaul.t. The Appticant contends that servrce of the notice of appeaL and letter requesting for the record of proceedings was effected, but the Court of Appeat found otherwise. ln the circumstances, there is no decision of the High Court that was confirmed, varied, or reversed by the Court of AppeaL, which has become the subject matter of a second appeal in the Supreme Court from which this apptication arises, nor was the appea[ heard on its merits, rendering any proceedings in the Supreme Court without jurisdiction and therefore a nuLtity. This Court's previous decisions, inctuding Attorney General v. Kikwanzi (Civil Application /3 of 2019, Civit Application 15 of 2020) [2024J UGSC 14, Kobusingye v. Nyakana & Another (Supreme Court Civil Appeal No. 5 of 2004), and Uganda National Examinations Board v. Mparo General Contractors Ltd [2004J UGSC 51, make clear that appeats Iie to this Court onty from decisions of the Court of Appeat made in exercise of its appetlate jurisdiction, and not from intertocutory or incidentaI orders not arising from a challenge to the decision of the High Court. 10 15 20 7q 30 35 6 Consequentty, where the Court of Appeat has not confirmed, varied, or reversed a High Court decision on its merits, but instead has struck out an appeat for a procedural defect, section 6(1) of the Judicature Act does not confer jurisdiction upon the Supreme Court. Even assuming for the sake of argument that this Court were to find that it is seized with jurisdiction, the apptication woutd nevertheless fait on its merits. The retief sought is intertocutory, namety, a temporary injunction against the fourth respondent as Administrator of the Estate of the Late Emmanuel Binyerere, to preserve the subject matter pending the hearing and determination of Supreme Court CiviL Appeat No. 031 of 2025. The subject property, Kibuga Btock 2 Ptot 30, [ocated at Sir Apotto Kaggwa Road, Kampata, is ctaimed by the Appticant based on beneficial. inheritance. The Appticant atleges continuous occupation and use by hersetf and her predecessors for over forty years, and seeks rectification of the register on grounds of aLteged fraud. The fourth respondent, on the other hand, asserts that the Estate of Emmanuel Binyerere is the registered proprietor and denies the Appl.icant's possession, ctaiming the tand is currentty leased to a tenant. Judicial. proceedings in the lower courts disctose that the Appticant's substantive suit (HCCS No. 28 ot 2014) was dismissed for being barred by the law on Limitation, foLl.owing a pretiminary objection. The Appticant thereafter fited an apptication for and succeeded in obtaining an order maintaining the status quo (in HCMA No. 2699 ot 2015) pending appeat to the Court of Appeat, but the fourth respondent now contends that such order has tapsed with the dismissaL of the said appeat. The AppLicant's appeal. to the Court of Appeat (CACA No. 84 ot 2017) was struck out for faiture to prove service of the notice of appeal and the letter requesting the record of proceedings, as required under Rute 83(3) of the Judicature (Supreme Court RuLes) Direction, to argue that the period taken for preparation of the record of appeaL shouLd be exctuded from reckoning the 60 days within which to todge an appeat. 10 15 2Q 30 35 7 5 The AppLicant now seeks a temporary injunction from this Court pending the determination of Supreme Court Civit Appeat No. 031 of 2025, an appeal Lodged against the striking out decision of the Court of Appeat. As Noted the basis of the striking out was that the notice of appeaL and letter requesting for the record were not served on the respondent. ln the Supreme Court, the appel.tant intends to argue that these documents were served on the respondent. The Appl.icant's submissions may be summarized as fotlows 1. The Appl.icant contends that, fotLowing the dismissat of the appeat by the Court of Appeat, that court is functus officio and cannot entertain any further appLication for stay; thus, the Supreme Court's inherent jurisdiction must be invoked to prevent the appeal' from being rendered nugatory. 2. The Applicant submits that she has demonstrated a prima facie case, that she wil.t suffer irreparabte harm absent an injunction, and that the batance of convenience favours maintaining the status quo. 3. The Appticant asserts that an appeal constitutes a suit for purposes of Order 4l Rute 1 of the Civil Procedure Rules, retying on section 2 of the Civit Procedure Act. 1. That the Appticant has no legaI or equitabte interest in the property, not being the registered proprietor, 10 15 20 25 8 The fourth respondent opposes the application on muttipte grounds: 5 3. That the injunction sought is not avaitabte as there is no pending suit to which it can attach, and any apptication must be brought strictty under the Supreme Court Rules; and 4. That the Appticant's aLl.egations of irreparabte harm are specutative. The fourth respondent atso raises a pretiminary objection as to the competence of the apptication, asserting that Qrder 4l Rul.e 1 is inappticabte in appel.tate proceedings. ln repty, the Appl.icant maintains that the proceedings initiated by notice of appeal. constitute a suit, and that she retains possession of the property notwithstanding the presence of a tenant. The fundamental issue is whether this Court is seized of jurisdiction. ln the/ k a[ternative, whether Supreme Court Civil. Appeat No. 031 of 2025, arising from the striking out or dismissal. of CACA No. 84 of 2017 for faiture to take a procedurat step, constitutes a pending suit to ground a competent apptication for a temporary injunction under Order 4l Rul'e 1 in conjunction with the Supreme Court's inherent powers. Secondty, whether this court is seized with jurisdiction in the matter. Counset whiLe retying on rute 2 (2) of the Rules of this Court which preserves the inherent jurisdiction of this court, have misdirected their minds to Order 41 of the Civit Procedure Rutes. lt is trrte that the correct rute is rute 6 (2) (b) of the Judicature (Supreme Court Rutes) Directions, which were rightty cited by the appl.icant in the Notice of Motion and the citation of the Civil. Procedure Rutes has no basis. The principtes for the 10 15 20 25 9 30 2. That her ctaim is time-barred and has been dismissed by the High Court, which dismissat has not been cha[tenged on its merits; 5 grant of a temporary injunction are wetl settled: The Appticant must show that an appeal. has been fited, (i) a serious question to be tried; (ii) a risk of irreparabLe harm; and (iii) that the batance of convenience is in her favour. ln the instant case, the High Court's dismissaI of the substantive suit on Limitation grounds remains unchatl.enged. The appeat to the Court of Appeat was struck out on procedural grounds and not heard on its merits. The question is one of fact as to whether the notice of appeal and tetter requesting for the record of proceedings were served. These questions of fact can be the subject of review in the court of Appeat if any evidence was not considered that proves service of the crucial documents. The present appeat to this court is thus founded sotety on procedural comptaints based on factual matters tried soLety in the court of Appeat and does not, and cannot, revive the substantive ctaim which was conctusivety dismissed as time-barred. 0nce a suit is dismissed as statute-barred, and no competent appeal. is pending to chau.enge the basis of such dismissat, the claim rs extinguished. An appeu.ate process which is engaged to try another matter (i.e. whether documents were served on the respondent in the court of Appeal., appel.tate proceedings) cannot resuscitate a cause of action that is tegatLy dead. The current appeaL, focused on procedura[ issues based on a question of fact of whether service was effected or not, cannot restore the underlying ctaim of the suit being time barred. It fol.l.ows that the AppLicant faited to establish a prima facie case, and there is no substantive cl.aim chal.Lenging the time bar decision pending determination in the Supreme Court. The request for rnterim retief, in these circumstances, is academic and wou[d serve no usefuI purpose Even considering the further criteria for rnjunctive retief, the absence of an undertying cause of action is fatat. Conctusion and 0rders 10 10 l) 20 25 30 5 For the reasons advanced above, this Court finds that the Appticant has not estabtished a prima facie case or any tegal basis for the grant of a temporary injunction. The High Court's dismissaI of the suit on Iimitation grounds stands unchattenged, and the current appLication is mrsconceived. ln Light of the eartier finding and in the frnaI anaLysis, lfind that this court has no jurisdiction to entertain the apptication because there is no decision of the High Court which was affirmed, varied, or reversed by the Court of Appeal. in terms of section 6 (l) of the Judicature Act. I accordingty strike out the appticant's appl.ication with costs to the respondents. It is so ordered Signed at Kampata on the 5th day of November, 2025 10 15 nstopher Madrama lzama Justice of the Supreme Court 20 Ruting delivered in open Court at Kampata on the 5th day of November 2025 Christopher Madrama lzama Justice of the Supreme Court 25 ln the presence of: Birungi Fatuma Court CLerk Mwebaze Atex, son of the 4th Respondent Murungi Fortunate daughter of the 4th Respondent 11